- (1.) N. K. Mehrotra, J. The petitioners of all these three writ petitions were initially appointed as Tube-well Operators in the Irrigation Department. After the 73rd amendment in the Constitution of India, the State Government issued an order on 12-4-1999 in order to implement the scheme of decentralization of powers wherein the work of several department of the State Government namely Primary Education, Anaupcharik Shiksha, Government Tube-well, Rural Water Supply, Medical Health and Family Planning, Veterinary Medical Services, Youth Welfare and Social Welfare, Women Welfare and Child Development, Cane Land Development and Water Resources, Agriculture, Food, Rural Development and Panchayat Raj Department were given under the complete control of Gram Panchayats. The Tube-well Operators, Seenchpal (Tube-well) and Seenchpal (Canal) were appointed on the post of multi-purpose employee by way of transfer of their services from the Irrigation Department of the State Government and the petitioners were also appointed as multipurpose employee/gram Panchayat Vikas Adhikari. The Tube- well Operator cadre was declared as dying cadre on 5-5-1999 as contained in Annexure-3. Later on, U. P. Panchayat Raj Act, 1947 was amended. Since the earlier order dated 12-4-1999 was technically defective, the State Government after exercising the power under the Amending Act issued fresh orders in accordance with the provisions of Sections 25 and 25-A (as amended ). Under the Amending Act, the State Government was empowered to transfer any employee or class of employee serving in connection with the affairs of the State to serve under the Gram Panchayat. On 20-7-2004, certain group of employees namely Kisan Sahayak of Agriculture Department, Cane Supervisor of Cane Development and Gram Vikas Adhikari of Rural Development were sent back to their parent department and the remaining employees of the other department including the petitioners were required to be posted for the purpose of formation of clusters of the Gram Panchayat. In this Government order also, it was provided that the employees of these departments who have been sent to the parent department will continue to perform their function under the administrative and financial control of the Gram Panchayat. It is alleged that now after elapse of more than six years, State Government has issued an order dated 19-7-2005, Annexure-1 by which the petitioners tube-well operators have been sent back to the Irrigation Department. According to the direction in this Government order, all the Government Tube-wells alongwith its belongings have been returned back to the Irrigation Department and the persons working as Gram Panchayat Vikas Adhikari likewise the petitioners have been posted as Tube- well Operators/part time Tube-well Operators under the control of the Irrigation Department. It is this Government order dated 19-7-2005 which has been challenged in all the three writ petitions.
(2.) THE main ground to challenge this order is that the opposite parties had no occasion to make any provision to keep the petitioner under the control of the Gram Panchayat after their repatriation and on this score, the impugned Government order dated 19-7-2005, is liable to be struck down. It is also contended by the petitioners that since the cadre of tube-well operators is not revived and therefore, the impugned Government order dated 19-7-2005, cannot be implemented. THE next contention of the petitioner is that all the part time tube-well operators were declared full time tube-well operators by this Court in Writ Petition No. 3558 (S/s) of 1992, Suresh Chandra Tiwari and Ors. v. State of U. P. and Ors. Uttar Pradesh Gram Panchayat Adhikari Sangh through its President have moved an application for their impleadment to oppose the Writ Petition No. 4779 (S/s) of 2005. I have heard Shri Rakesh Kumar Srivastava, Counsel for the petitioner, Shri Vinod Kumar Singh Additional Advocate General for the opposite parties and Shri Ram Raj Advocate for the applicants for impleadment.
(3.) AFTER hearing the learned Counsel for the parties, I find that there are certain facts which are not disputed by either parties. Earlier on 6-6-2001 and by subsequent orders on 21-9-2001 and 19- 11-2001 : Seenchpal (Canal Division), Male Health Workers and Seenchpal (Bhumi Vikas and Jal Sansathan) were sent back to their parent department by issuing the repatriation order and they were also kept under the control and supervision of Gram Panchayat. These three orders were challenged by the employees of those departments in bunch of writ petitions. Civil Misc. Writ Petition No. 22874 of 2001, Krishna Kant Tiwari and Anr. v. State of U. P. and Ors. , was the leading writ petition. This bunch of the writ petitions were decided by this Court vide judgment dated 8-1-2002. The judgment is in Krishna Kant Tiwari and Anr. v. State of U. P. and Ors. , 2002 (1) AWC 709 : (2002) 1 UPLBEC 475. It was held by this Court that the employees who were transferred by the Government order dated 1-7-2001 are not being absorbed in any new service but they were on deputation to Gram Panchayats. They can always be transferred back to their parent department. It was also held that there is no illegality in transferring the Seenchpal (Canal Division), Male Health Workers (Medical Department) and Seenchpal (Bhumi Vikas Evam Jal Sansadhan ). The provision under the Government order dated 6-6-2001 and 19-11-2001 transferring them back to their parent department are valid. A special appeal against this judgment and the special leave petition filed before the Supreme Court have been dismissed. Later on, the Government decided to transfer Kisan Sahayak of Agriculture Department, Cane Supervisor of Cane Development Department and Gram Vikas Adhikari of Rural Development Department were sent back to their parent department vide Government order dated 20-7-2004, Annexure-8 in the aforesaid Writ Petition No. 4779 (S/s) of 2005. This Government order dated 20-7- 2004 was challenged in Gauri Shanker and Ors. v. State of U. P. and Ors. , 2005 (1) AWC 626 : (2004) 3 UPLBEC 2759. Alongwith this writ petition, a bunch of writ petitions was decided by this Court. These writ petitions were dismissed subject to the condition that the petitioner shall not be compelled to discharge the duties under the administrative and financial control of gram panchayat. It was also directed that the State Government shall pass proper Government orders forthwith in the light of the observations made in the judgment. Gauri Shanker and Ors. filed a Special Appeal No. 1005 of 2004 against the judgment dated 7-8-2004, passed by the Hon'ble single Judge of this Court. The judgment of the Hon'ble single Judge dismissing the writ petition was upheld in special appeal but the condition imposed, that the petitioner shall not be compelled to discharge duty under the administrative and financial control of the Gram Panchayat, was set aside by the Division Bench. The relevant portion of this judgment is as follows : "the words "subject to condition that the petitioner shall not be compelled to discharge duty under the administrative and financial control of the Gram Panchayat" in effect nullifies that part of the Government order dated 20-7-2004, in which it has been held that the employees posted at the Gram Panchayat level will work under the administrative and financial control of the Gram Panchayat. We do not agree with this condition placed by the learned single Judge in his order dated 6-8-2004. It is always open to an employer to tell an employee under whose supervision and control the employee will work. For instance, if A appoints a servant and tells him to work in the house of B under the supervision and control of B, that servant continues to be the servant of A because A appointed him, A pays him salary and A can terminate his service even if his servant is working under the supervision and control of B. B cannot terminate his service ; he can only send him back to A. Hence, since the appellants are the servants of the Government is for the Government to decide under whose supervision and control they will work. The Government is the master and the Government can send its servants to work under the control of the Gram Panchayat. We see nothing strange or arbitrary in this. However, we make it clear that the Gram Panchayat cannot terminate the service of the appellants. ";