R.K.AGRAWAL,J. - (1.) THESE special appeals have been filed against a common judgment and order dated 8th January, 2002 passed by the learned Single Judge of this Court in Civil Misc. Writ Petition No. 22874 of 2001 (Krishan Kant Tiwari and another v. State of U.P. and others,) and other connected writ petitions whereby the learned Single Judge had held that the Government Order dated 6th June, 2001 is a decision of the State Government and employees who were transferred by the Government Order dated 1st July, 2001 are not absorbed in any new service but are on deputation to Gram Panchayat and they can always be repatriated to their parent department. The learned Single Judge further held that there is no illegality in transferring Sinchpal (Canal Department), Male Health Workers (Medical Department) and Sinchpal (Bhumi Vikas Evam Jal Sansthan) and the provisions of the Government Orders dated 6th June, 2001 and 19th November, 2001repatriating them to their parent department are valid. However, the learned Single Judge held that paragraphs 3, 4 and 5 of the Government Order dated 6th June, 2001, as amended by the Government Order dated 21st September, 2001 by which Tube -well Operators and Cane Supervisors have been divided into two classes and the persons having qualification upto High School have been re -designated as Gram Panchayat Even Vikas Adhikari (Karyakram) are discriminatory and are quashed. Feeling aggrieved by the aforesaid decision, these special appeals have been filed.
(2.) BRIEFLY stated the facts giving rise to the present special appeals are as follows: The State Government issued a Government Order on 12th April, 1999 which was partly modified on 29th April, 1999 under which at least one multipurpose worker was to be appointed in every Gram Panchayat from amongst the employees of eight departments of the Government who were to be transferred and kept under the control and supervision of Gram Panchayats. When the aforesaid Government Order was issued there was no statutory provision in the Panchayat Raj Act empowering the State Government to transfer the employees. This Government Order was cancelled on 30th June, 1999 and a fresh Government Order was issued on 1st July, 1999 after necessary amendment in Panchayat Raj Act was made by U.P. Act No. 27 of 1999 empowering the State Government to make such transfers. The Government Order dated 1st July, 1999 was partly modified on 12th July, 2001. The contents of the earlier Government Order was more or less incorporated in the Government Order dated 1st July, 1999. According to it one multi purpose worker, known as Gram Panchayat Evam Vikas Adhikari was to be appointed in every Gram Panchayat. He is to be from the employees of stated posts of the eight departments of Government who were transferred to Gram Panchayat and he was to be the Secretary of the Gram Panchayat. The multi purpose workers were to perform all functions of the eight departments except some of which were to be performed by Lekhpals of the Revenue Department. The transferred employees were to work under the control and supervision of the Gram Panchayats. The employees of four other departments were also placed under the control and supervision of the Gram Panchayats and they were not treated as multipurpose workers but were required to do work of their departments. This arrangement continued for some time. When difficulties were faced in the implementation and working of the aforesaid Government Orders the State Government on some representations moved by Sinchai Sangh, Uttar Pradesh and Uttar Pradesh Basic Health Workers Association, appointed a Committee to look into the matter. The Committee examined the working of the Gram Panchayat, vis -a -vis, employees transferred from other Government departments and made a recommendation which was accepted by the Cabinet and thereafter the Government Order was issued on 6th June, 2001 which was subsequently modified on 6th July, 2001 and 21st September, 2001. By virtue of the aforesaid Government Orders, Sinchpal (Canal Division) and Male Health Workers were sent back to their parent departments. The tube -well Operators and Cane Supervisors, having qualification up to High School, were re -designated as Gram Panchayat Evam Vikas Adhikari (Karyakram) and they were to look after the work of their department only. The Tube -well Operators and Cane Supervisors having higher qualification were continued to work as multi purpose workers and were required to perform the work of other departments also. By another Government Order dated 19th November, 2001 Sinchpal belonging to Bhumi Vikas and Jal Sansadhan Department were also reverted back to their parent departments. Thus the employees of three departments were repatriated and employees of two departments were re -designated and confined to perform their duties on the basis of their educational qualification. The validity of the Government Orders dated 6th June, 2001, 6th July 2001 and 21st September, 2001 was challenged by the petitioners -appellants before the learned Single Judge on the ground that the Government Order dated 6th July, 2001 has not been issued in the name of the Governor of the State and thus no decision has been taken by the State Government and, therefore, they pleaded that the same is violative of Article 166 of the Constitution of India. It was further urged before the learned Single Judge that the cadre of the transferred employees is a dead cadre and they having been absorbed in the new cadre cannot be sent back to their parent department. Apart from it, it was also urged that these employees cannot be sent back to their parent department and the power of transfer can be exercised only once and, therefore, the impugned action is arbitrary and discriminatory. The learned Single Judge as already mentioned hereinbefore had held the Government Order dated 6th June, 2001 to be the decision of the State Government and not violative of Article 166 of the Constitution of India. However, the learned Single Judge had struck down paragraphs 3, 4 and 5 of the said Government Order being discriminatory. It has been further held that the employees, who have been transferred, have not been absorbed and they can always be transferred back to their parent department and there is no illegality in such re -transfer. The judgment and order dated 8th January, 2002 are under challenge in these special appeals. We have heard Dr. R.G. Padia, learned Senior Advocate assisted by Sri Prakash Padia, learned Counsel appearing on behalf of appellants -writ petitioners and Sri Sabhajeet Yadav, learned standing Counsel on behalf of the respondents.
(3.) DR . R.G. Padia, learned Senior Advocate submitted that the original Government Order dated 1st July, 1999 was issued in the name of the Government of Uttar pradesh which was, in accordance with the provisions of U.P. Panchayat Raj Act as amended by U.P. Act No. 27 of 1999, and also in conformity with Article 166 of the Constitution of India. However, the subsequent Government Order dated 6 -6 -2001 does not even mention that it has been issued by the Governor and it has been signed by the Chief Secretary in his individual capacity. Thus, it does not satisfy the requirement of Article 166 of the Constitution. It is pure and simple order signed and executed by the Chief Secretary who cannot amend the earlier order passed on behalf of the Governor. So far as the corrigendum dated 6th July, 2001 containing the clause that the 'Governer has been pleased to grant permission to issue the said order', is concerned, mere issuance of corrigendum will not validate an illegal and non -est order. He relied upon the following decisions in support of his submission: (1) Kedar Nath Bahl v. State of Punjab and others, (AIR 1979 S.C. 220) (2) State of Kerala v. A. Lakshmikutty and others, (AIR 1987 S.C. 331) (3) Gulabrao Keshavrao Patil and others v. State of Gujarat and others, [(1996) 2 SCC 26]. ;