Partap Singh vs State of Himachal Pradesh etc.

Chet Ram Thakur, J.—The Petitioner has challenged the order (Annexure P.C.) passed by the Deputy Commissioner, Kangra, on 22nd August, 1968, everting the Petitioner from the post of Head Clerk in the Panchayat Samiti, Hamirpur, the then District Kangra, to the post of Tax Collector.

The brief facts are that the Petitioner joined as a Tax Clerk in the year 1949 under the District Board Kangra. The District Board was abolished in the erstwhile Punjab State and in its place the Panchayat Samitis were formed. On the abolition of the District Board Kangra, the Petitioner was transferred and posted as a Tax Collector under the Panchayat Samiti, Hamirpur, in the year 1962. Thereafter he was promoted as a Head Clerk with effect from 20th July, 1963, vide order, "Annexure P.A." on the basis of a resolution (Annexure P.B.) passed by the Panchayat Samiti, Hamirpur, on 19th July, 1963. The Petitioner had been working as a Head Clerk upto 20th August, 1968, when this impugned order was passed by the Deputy Commissioner , Kangra.

I have heard the learned Counsel for the Petitioner but the learned Advocate-General is not present. However, my attention has been invited by the learned Counsel for the Petitioner to the return filed by the Respondents Nos. 1 to 3. The Respondents have admitted in para 2 of the their return that the Petitioner was promoted and appointed as a Head Clerk but they averred that the appointment was subject to the provisions of the Punjab Panchayat Samitis and Zila Parishads Act and the rules on the subject framed thereunder. But from the resolution (Annexure P.B.), I have not been able to find anything if the appointment of the Petitioner as a Head Clerk was subject to the provisions of the Punjab Panchayat Samitis and Zila Parishads Act. The Deputy Commissioner in the impugned order has stated that the Petitioner was selected as such by the Committee subject to verification by the Deputy Commissioner/Chairman Zila Parishad Kangra that his service roll was good, and that he had seen his character rolls and also the observations made by the Chairman Zila Parishad Kangra and he did not consider him fit to hold the post of a Head Clerk. But from the order of appointment (Annexure P.A.) and the resolution (Annexure P.B.), no such thing can be spelt out that his appointment was subject to the provisions of the Punjab Panchayat Samitis and Zila Parishads Act and the rules on the subject framed thereunder. The Respondents have also not filed any rules to show as to how the appointment to the post of a Head Clerk under the Panchayat Samiti could be made. The Respondents have, however, filed one Annexure R.A. which purports to be a copy of a memo, dated 10th August, 1962, from the Financial Commissioner Development and Secretary to Government Punjab, Development and Panchayat Department, addressed to the Chairman of all Zila Parishads in the State and the Chairman of all Panchayat Samitis in the State. The subject of this memo, is ''staffing pattern of the Zila Parishads and Panchayat Samitis.'' Para 2 of this memo, states that appointments to those posts will, however, be made in accordance with the recruitment rules which will be shortly notified. Till then the Samiti/Zila Parishad may make any appointment against any of the posts for a period of six months (except in the case of the Secretary) with the prior approval of the Government. The services of the incumbents of such posts will, however, either be terminated after a period of six months or have to be regularised through Subordinate Services Selection Board or the Public Service Commission as the case may be in accordance with the recruitment rules referred to above. The Petitioner has filed an Annexure P.I. which is an extract from the notification No. GSR. 126/P.A. 3/61-33-100 and 115/65, dated the 15th June, 1965, Development and Panchayat Department . Rule 4 reads as under:

Appointing authority.-(1) All appointments to the service shall be made:

(i) in the case of employees of Zila Parishad by the Zila Parishad concerned; and

(ii) in the case of employees of a Panchayat Samiti, and also in the case of Secretary of Gram Panchayat, by the Panchayat Samiti concerned.

Sub-rule (2) says that:

All appointments to the service shall be made by the appointing authority on the recommendation of the:

(i) Commission where the post carries initial pay of Rs. 160 or more; and

(ii) District Committee concerned where the initial pay is less than Rs. 160/-:

Provided that a vacancy which could not be anticipated may be filled by the Zila Parishad or the Panchayat Samiti, as the case may be, for a period of six months or till a candidate is recommended by the Commissioner or District Committee, as the case may be, whichever is earlier. Sub-rule (3) states as to who shall be the members of the District Committee. It is not denied by the Respondents that these were the rules governing the appointment to the service to which the Petitioner belonged. It is also not denied that the post to which the Petitioner was appointed carried a scale of pay of Rs. 150-300 as is also evident from Annexure P.A. This means that the initial pay of the Petitioner was Rs. 150/-and, therefore, under Sub-rule (3) of Rule 4 it was the District Committee consisting of four persons including the Deputy Commissioner, who were to make recommendations to the Panchayat Samiti which was the appointing authority in respect of the Head Clerk. Even if the Petitioner''s initial appointment may be held to be only for a period of six months, as is sought to be proved by the Respondents through the Annexure R.A. even then the Deputy Commissioner was not competent person to revert the Petitioner because he no where figures under the rules so as to exercise such a, power. The Deputy Commissioner is one of the members of the District Committee whose function is only to make the recommendation for the appointment to the post of a Head Clerk to the Panchayat Samiti, who is the appointing authority. Therefore, on the very face of it the order is without jurisdiction and requires to be struck down.

It is also admitted by the Respondents in Para 4 of the return that the appointing authority for the post of a Head Clerk in the Panchayat Samiti is the Panchayat Samiti itself and not the Deputy Commissioner. The Deputy Commissioner under the provisions of the rules framed under the Punjab Panchayat Samitis and Zila Parishads Act is only a member of the District Committee meant for selecting candidates for appointments to the posts under the Punjab Panchayat Samitis carrying an initial pay upto Rs. 160/-. It has, however, been stated that the Deputy Commissioner in his capacity as such having been entrusted by the District Committee with the function of examining the character rolls of the Petitioner intimated his views to the Chairman Zila Parishad after examining the character rolls and service record of the Petitioner and he did not pass any order of reversion affecting the Petitioner, which is against facts placed on the record. This order of reversion passed by the Deputy Commissioner is wholly incorrect. Therefore, this order being illegal cannot stand and must be struck down.

I, therefore, on this very ground quash this order (Annexure P.C.) and allow the petition. The ptitioner shall be deemed to have continued in service as a Head Clerk from the date of his reversion which is without jurisdiction. Costs assessed at Rs. 100/-.