Holding

The Panchayat Samiti lacked authority to appoint the appellant as Head Clerk after the amendment, rendering the appointment invalid and the Government not bound to absorb him as Head Clerk.

Summary

Ram Sarup was appointed as a clerk by the Loharu Panchayat Samiti in 1963 and later promoted to Head Clerk on an ad‑hoc basis in 1974 and regularised in 1975. The Haryana Amendment Act of 1973 deleted Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act, which had empowered the Samiti to make appointments, thereby stripping it of any authority to appoint staff after 13 June 1973. Under Section 14(4) of the Amendment Act, employees who were in service before 1 April 1973 could continue on the same terms until absorbed into government service. The Government of Haryana, invoking this provision, absorbed the appellant only as a clerk, not as a Head Clerk. The appellant challenged this, seeking to be absorbed as Head Clerk, but the Supreme Court held that the Samiti’s appointment of him as Head Clerk after the deletion of Section 33 was ultra vires, and consequently the Government was not bound to honor the promotion. The appeal was dismissed.

Issues considered

Whether the Panchayat Samiti had the legal authority to appoint the appellant as Head Clerk after the deletion of Section 33 by the 1973 Amendment Act.
Whether Section 14(4) of the Haryana Amendment Act protects the appellant’s promotion to Head Clerk and obliges the Government to absorb him in that post.

Legislation cited

Punjab Panchayat Samitis and Zilla Parishads Act, 1961s. 33
Punjab Panchayat Samitis and Zilla Parishads (Haryana Amendment) Act, 1973s. 13, s. 14(4), s. 35(1), s. 35(3)

Subjects

Panchayat Samitiappointment powersection deletionpromotionabsorptionservice conditionsadministrative law

Judgment

•

734

A ,RAM SARUP

v.

-STATE OF BARY ANA & ORS.

[Y.V. CHANDRACHUD
May3, 1984

c;.J, D.P. MADON, AND RANGA NATH
..f
MISRA, JJ.J
Panchayat Samitls, and Zilla Paris'1ads Act, 1961 a.r amended by Harayna
Ame1Jdment .Act of 1973 de!etiilg Section 33, Effect of-Whether af)y tzppointlizenf
0 made after the deletion of Section 33 valid effective. rf

Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act, 1961
provided that subject to rules made by the Govetnment, a Panchayat Sariliti
may employ such ·servants asit n1ay consider necessary for the efficienrPerfor-
\ .
·mancc of the dufies imposed upon it by the Act,. i;ules or bye-laws.made there-
·unde( o~ by any other· law for the time beilig in force. The Punjab· Panchayat
D Samitis and Zilla Parishads (Haryana Amendment Act, j973 which came into
force from June, 13, 1973', introduced extenSive ar!lendments. Section 33 of the
Act was deleted by Section 13 of the Amending Act, Sub section (4) of Section
14 the·Amending Act, provided that perso~s.empJoyed by a Panchayat Samiti
before April 4, 1973 and who .were in service .at the commecement of the
Amending Act, "shall colninue to serve on the. same terms and conditions on
E which they "'ere employed by the· J>anchayat Samiti" until th.ey are absorbed in
the G.overnment Service· or retire in s~ch mannei as m.cy be prescribed. Section
. 35(1) of the Act empowers the State-Government to place at the disposa 1 of a
. Panchayat Samiti such of its servants as lrc required for the implementation of
the schemes annexed therewith and for such other duties and .fUnCtions as may
be assigned to then1 by the Panchayat Samitis from time to timee.
F
The appellant ·was appointed as a clerk on Julle I, 1963 by the Panchayat ·
Sarniti, Loharu; H·e .was confirmed. in that post in course of rime. On January
21,.1974, he was promoted as ·a Head Clerk lQn an adhoc basis. On March, 14
-1975 a resolution was passed by the Samitl regularising the post of Head Clerk.
On April 1, 1975, the appellant'·was · a·ppoioted ~:s a Head Cl.erk. Acting in
pursuance of the provision of Section 14(4) of the the Amending Act, the
G Government of Haryana notified the absorption o_f the appellant-as 3. clerk.
though hC was worki'ng as a:Head Clerk' since January 21, 1974." B:ing aggriev~
ed the appellant filed a Writ Petition and prayed for il ·direction to absofb him
as a"Head Clerk .. The Writ Petition having been. dismis~ed by the High Court,
the appellanths filed this appeal by special leave;

Dismissing. the· appeal, the _Court,
H HELD: LJ. The Panchayat Samiti had no right to appoint the appellant
to the post of H~ad Clerk on the date on Which it ·purported tQ dO so. As a
result of the <leletion of Section 33 of the Act by the Amending Act of 1973, the
RAM Si\RUP v. HARYANA (Chandrachud, C.J.) 735
Panchayat Samiti lost its. power to make appointment to the Parichayat. It
could not ther.efore have appointed the appellant as a Head Clefk, as it purport-
ed to d(}-so, in January,· 1974 on an adhoc basis or in April 1965 On a ,regular A
basis. [737D]
•
, J .2. Though- the right to be considered. for promotion is a term and condi-
- tion of service, in the instant case, the_ appointment .of the appellant to the post
of·a Head CJerk being without the authority of law, the Government was nOt B
•• bound to absorb him in. the post of a Head Clerk; He was appointed 1awfu1Jy
to the post of a clerk and that fs the p~st in which the Government' has absor-
bed him; [737C ; El

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1433 of . c
1977

Appeal by Special leave from the Judgment and Order. dat~d
the !6th.February, 1977. of the Punj1b and Haryana High Court in
Civil Writ Petition No. 752 of 1977.
D
J.D. Jain & Mrs. Kawa/jit Kocher for the Appellant.
Harban.; Lai, l.S. Goel & R.N. Poddar for the Respondent.
•
The Judgment of the Court was delivered by

CHANDRACl!UD, CJ. Section 33 of the Punjab Panchayat Samitis
·E
and Zilla Parishads Act, 1961 ("The Act")" provided in so far as
relevant, that subject to rules made by the Government, a Pai:J.chayat
Samiti may employ such servants as it may consider ne.cessary for·
the efficient performance of the duties imposed upon it by the Act, F
rules or bye-laws made thereunder or by any other law for the time·
being in force. In p,ursuance of this power, the appellant was
appointed as a clerk on June 1, 1963 by the Panchayat Samiti,
Loharu, which is respondent 3 in this appeal. He was confirmed in
that po.st in course of time. On J'anuary 21, 1974 he was promo.ted
as a Head Clerk on an ad lz~c basis. On March 14, 1975 a resolu- G
tion was passed by .respondent 3 regularising the post of Head Clerk .
.On April 1; 1975, the appellant was appointed as a Head Clerk.

The Punjab Panchayat SamitisJ Zilla · Parishads (Haryana
Amendment) Act, 1973 introduced extensive.amendments in the Act
of 1961. Section 13 of the Amending Act deleted section 33 of the
Act. , A plain consequence of this deletion was that the Panchayat
H
Samitis were divested of their power to make allPointments to· the
Panchayats. The Amending Act re1ieived the assent of the Governor
736 '.'lll'RJMB COURT REPORTS l\9S4J 3 S.C.ll

A on April 25, 1973 and was published in the Haryana ·Gazette on
June 13, 1973:

Sections 35(1) of the Act empowers tbe State Gov~rnment to
place at the disposal of a Panchayat Samiti such of its servants as
are required for the implementation of the schemes connected
B therewith and for such other duties and fuµctions as may be assigned
to them by the Panchayat Samiti from time to time. · Section 35(3)
which dealt with the conditions . of. service of the Government
servants allotted to the Panchayai Sam.tis, was amended by section ·
' .'
· 14 of the Amending AC! of 1973. Sub-section (4) of section 14 of
the Amending Act provides that persons employed by a Panchayat
c Samiti before April 1, 1973 and who were in s.ervice at the commence-
ment of the Amending Act, "shall continue to service on the same
terms and conditions on which they were employed by the Panchayat
Saroiti", until they are absorbed·in the Government service or retire
in such manner as may be pres?ribed.

D • 'Acting in pursuance of the provision of section 14(4) of the
Amending Act, the Government of Haryana notified the absorption
• of the a~pellant as a clerk though, as stated earlier. he . wa.s working
as a Head Clerk in the Loharu Panchayat Samiti. Being aggrieved
by his absorption on a lower post, he filed a writ petition in the
E High Cpu~t of Punjab and Haryana, asking that he .should be
absorbed as a Head Clerk. The writ p~tition having been dismissed
by th~ High Court, the appellant has filed. this appeal' by special
leave. ..

The appellant was appointed as a clerk by the Loharu
F Panchayat Samiti in 1963, long before the.. Amending Act came into
for<;e on June 13, 1973. He was, therefore, entitled to be absorbed
in Government service as a clerk in any event. But, as a result of
the deletion of section 33 of the Act by the Amending Act of 1973,
the · Panchayat· Samiti lost its power to make appointments to the
Panchayat. ·The· fact· that th,e appellant was ·promoted as a Head
G· Clerk of\ an ad hoc ·basis in January 1974, or the further fact.that
he was appointed as a Head Clerk on April l; 1975, cannot improve
his position for the simple reason that these appointments we.~e
made after June 13, 1973, being the date on which the Panchayat
Samiti lost its power to make appointments to the Panchayat.
H
RAM SARUP v. HARYANA (Chandrachud, CJ.) 131
It is urged by Shri Jain who appears on behalf of the appellant
that by reason of section 14(4) of the Amending Act, the appellant A
was entitled to continue in the service of the Panchayat on the same
· terms and conditions on which he was employed by the Panchayat
, Samiti until he was absorbed in Government service. Since the
appellant, according to the terms and conditions of his service with
the Panchayat, was entitled to be considered for promotion to the·
post of a Head Clerk, his appointment ~s a Head Clerk prior to his B

.,• •
absorption in Government service had to be recognised and protec-
·ted, despite the fact that such appointment was made after June 13,
1973 when the Amending Act came into force. There is no subs-
tance in this contenion. Even assuming for the purposes of argument
that the right to be considered for promotion is a term and condition
of service, what is relevant for . our purpose is not whether the C.
•
appellant was entitled to be considered for promotion but, whe~f(el'
the Panchayat. Samiti had the right to appoint him t6 ·the post of
Head Clerk on the date on which it purported to do so. Clearly, it
;.. . · had forfeited that right on June 13, 1973. It could not, therefore,
. !- have appointed the appellant as a Head Clerk, as it pnrported te>
D
do, in January 1974 on an ad hoc basis or in April 1675 on a regular
basis. .The. appointment of the appellant to the post of a Head
Clerk being without the authority of law, the Government was not
bound to absorb. him in the post of a Head Clerk. He was appointed
lawfully to the post of a Clerk and that is the post in which the
Government has absorbed him. E
For these reasons, the appeal fails and is dismissed. There
will be "no order as to costs.
F
S.R Appeal dismisseJ.

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