Hemant Gupta - (1.) THIS order shall dispose of aforementioned three writ petitions, wherein the petitioners have challenged the legality of Section 16 (4) of the Punjab Gram Panchayat Act, 1952 (for short 'the Act'), by declaring the same as ultra vires to Articles 14 and 16 of the Constitution of India.
(2.) THE petitioners are working as Panchayat Secretaries in the different Panchayats, even prior to the constitution of Punjab Panchayat Secretaries (Recruitment & Conditions of Service) Rules, 1979 (for short 'the Rules'), framed in exercise of powers conferred under Section 16 of the Act. THE stand of the petitioners is that constitution of separate service under the control and management of the Panchayat Samiti is ultra vires to Articles 14 and 16 of the Constitution of India and that the petitioners are government servants holding the civil posts under the State. Before the contention of the petitioners are examined, reproduction of certain provisions is necessary. The same are as under: "16. Constitution of Panchayat Secretaries Service : (1) Notwithstanding anything contained in the Act, the Government may, by notification, constitute, in prescribed manner, the Punjab Panchayat Secretaries Services (herein referred to as the Services). (2) The Government may make rules for regulating the recruitment, salaries, allowances and other conditions of service of members of the service. (3) The salary, allowances, gratuity, annuity, pension and other payments required to be made to members of the Service in accordance with the conditions of their service shall be charged upon the Samiti Fund and the Panchayat Samiti may, for making these payments, levy contributions from the Gram Funds of the concerned Gram Panchayat in such proportion as may be fixed by it keeping in view the quantum of work, financial resources and other relevant factors in the case of such Gram Panchayat. (4) Creation of posts of Panchayat Secretaries in the Service and appointment of persons thereto shall be made by the Government or by an authority empowered by it in this behalf, and every such Panchayat Secretary shall be deemed to be an employee of the Panchayat Samiti in whose jurisdiction he may be serving for the time being. (5) & (6) xxx xxx xxx"
(3.) IN exercise of the powers conferred under sub-section 2 of Section 16 of the Act, the State Government has notified Punjab Panchayat Secretaries (Recruitment and Conditions of Service) Rules, 1979. Such Rules provide qualification for appointment on the post, method of recruitment, cadre of service, seniority and liability of members of service to transfer. The relevant Rules are as under: "9. METHOD OF RECRUITMENT - (1) Recruitment to the Service at the time of its initial constitution shall be made by the appointing authority by absorption of persons already in service as Secretary of a Gram Panchayat or group of Gram Panchayats, provided they are found fit by an authority appointed by the Government in this behalf for becoming a member of the Service after taking into consideration their qualifications and service record. (2) After filling in the vacancies under sub-rule (1), the remaining vacancies and the vacancies which may occur thereafter shall be filled in by direct recruitment : Provided that twenty-five per cent of the posts shall be reserved for the persons belonging to the Scheduled Castes and five per cent for the persons belonging to the Backward Classes or such percentage of posts as the Government may, from time to time, decide in this behalf shall be reserved for these categories. (3) The recruitment under sub- rule (2) shall be made by the appointing authority on the recommendation of the Selection Committee constituted under sub- rule (4). (4) The Government may, from time to time, by notification, constitute a Selection Committee consisting of not less than three and not more than five officers of the Department : Provided that at least one of the members of the Selection Committees shall belong to the Scheduled Castes. 10. CADRE OF THE SERVICE ? The number of posts created for the Service by the Government or by an authority empowered by it under sub-section (4) of the section 16 shall be deemed to be the cadre of the Service which shall be subject to variation by the authorities referred to in the aforesaid sub-section.";