JUDGMENT Ajoy Nath Ray, C.J.
1. These appeals are from several judgments of Hon'bie Single Judges passed both at Lucknow and Allahabad. In all these matters in the first Court, the State employees have lost their battle and the writ petitions have been dismissed in each case. In every appeal, therefore the appellant is the State employee and the respondent is the State.
2. The magnitude of these appeals is very large. The fate and future of some Twenty Two thousand State employees is involved in these appeals. These employees have to be introduced, if a little inadequately and a little inaccurately, in the beginning as Tubewell Operators and Part Time Tubewell Operators. They were all originally employed in the Irrigation Department of the State of Uttar Pradesh.
3. The principal government directive with which they are aggrieved is dated 19.7.2005 issued by the Chief Secretary of the State, then Ms. Neera Yadav.
4. By that order, all these employees were being sent back to the Irrigation Department from the Panchayat Raj Department so as to work thereafter again as Tubewell Operators and Tubewell Operators only. Until the 20th of July, 2004, along with certain other workers whom we shall mention hereafter again Tubewell Workers,- were working under the Panchayat Raj Department of the State Government as Gram Panchayat Vikas Adhikari, i.e. Village Panchayat Development Officer. The difference between working under the Panchayat Raj Department as Village Panchayat Development Officers and forking under the Irrigation Department as a plain and simple Tubewell Operators is most certainly there. It is because of these undeniable differences which exist, that these cases have been fought out to their bitter extreme length. The Gram Panchayat Vikas Adhikaris have also been called multipurpose workers; their jobs are many and those include not only Tubewell and water pumping work, but also youth welfare, looking after the ration system, health and family welfare, agriculture, village development and Panchayat Raj development work generally. They would, needless to say, be posted in different villages all over U.P. even as Tubewell Operators, their posting would be in villages. However, as multipurpose workers, they have far larger duties, secretarial jobs also in some cases with me Gram Panchayat and a much larger standing and footing. We were told during the course of argument that in some villages, where houses were available, Village Panchayat Development Officers would be allotted those houses for themselves. The benefits and the status are much more than the benefits and the status of a Tubewell Worker. It should be of understood, to get a grip over the fact, that of all the duties mentioned above to be performed by the multipurpose workers, the most important and the most technical one is that of tubewell operation. There are a little under Thirty Thousand State owned Tubewells all over U.P. purchase, sinking and installation of a single tubewell of this type today would caste about Rs. 15 lac; there is no village panchayat one State Tubewell; naturally there is no village panchayat which has a greater number either. The Tubewells are sank to depths between 300 feet and 1000 feet, the larger depth being necessary for the very dry outer districts of the State. The diameter of the "sank depth is 14 inches; the tubewell is capable of pumping out 33 those gallons of water per hour. It can be run for about eight to ten hours a day although there was some dispute before us as to how these can now run in the state of unavailability of continuous (?) supply of electricity in the villages of U.P.; sometimes perhaps the tubewell would have to be run only at night when electricity is available.
5. Although now some rich farmers have had their own Tubewells installed may be with or without captive power, pie very large majority of the Uttar Pradesh farmers, who are on the poor level, are wholly dependant on these Tubewells they fire the backbones? of village irrigation. The Tubewells come with their flotings and associated property; the electrical fittings are important and those are located at the same place as the water is pumpea up from underneath the ground. But a Tubewell is also associated various channels, which must be kept whole, well-repaired and in proper shape so that water pumped out from the central point, i.e. tubewell itself reaches various points of the village for the fair and total/distribution. It is the standard understanding of the local people of the State of Uttar Pradesh that in villages Tubewell Operators, even as such, had some type of social and other standings'; it was up to them to control the of dew of working, upon the proper working of them and their equipments? the life blood of Uttar Pradesh, i.e. agriculture of Uttar Pradesh was depended from what we understand which is still so largely depended.
6. The empowerment of these Tubewell workers with additional duties has not been made recently or overnight. It has had a historical and graded growth although the history dates back only about six or seven years; roughly speaking the thing happened in this way.
7. In the Year 1993, our Constitution was given its 73rd Amendment whereby various sub-Articles under Article 243 were introduced. The basic Article of Article 40 contained in the Chapter of the directive principle? of State policy was always there. This was the amendment directed at decentralization and local self-government. The idea was that State all over the country, in their own ways and using their own means, and wherever necessary even by legislation at the-highest level, would slowly empower village panchayats so that they could run on their own and develop on their own. The giving of power and the use of such power by local bodies themselves was thought to be the appropriate future course for raising the villages of India to higher and appropriate standards, may be international ones at some future dates.; practically working on their own and concentrating on the well being and development of the villages themselves, neither the panchayats nor the villages nor the villagers would be ever able to develop either self-respect or self-confidence or achieve anything of solid and lasting value in the practical world.
8. This was the ideal and this was the idea. We cannot say that after the 73rd Amendment things have gone on and developed like, house on fire or that villages have self developed by leaps and bounds; but the important thing is that something has been done and something has been attempted to be done in this rjection.
9. In the State of Uttar Pradesh, the Uttar, Pradesh Panchayat Raj Act, 1947 was given an amendment in the wake of the constitutional development in the year 1994, and particularly Section 15 of the said Act, as amended, was the result of this procedure.
10. Several areas were delineated as possible areas of development in the Panchayat Raj of the villagers. One of those areas is minor irrigation and certainly Tubewells of the type with which we are concerned, include in that.
11. Some five years after that in 1999 several government orders were passed and the Tubewell Operators with whom we are concerned today, were for the first time materially affected, and affected for much their better by these orders. After the passing of certain orders and corrections starting from 12.4.1999, a more or less final and compendious order was passed on the 1st of July, 1999. It is one of the most important Government Orders with which we are concerned here.
12. The basic matter there, for the purpose of the appellants before us, was that workers from eight departments were pointedly and expressly marked out by paragraph 4 of the said Government Order as multipurpose Panchayat employees.
13. It was said that for smooth functioning of works delegated to Gram Panchayats, at least one such multipurpose Panchayat employee would be appointed in each Gram Panchayat: The works to be carried out under full control of Gram Panchayat, were mentioned in paragraph 1 and those are numerous like primary education, formal education, rural drinking water, medical health and family welfare, child development and women development etc.
14. The workers of some eight departments were mentioned in the said paragraph 4; and from the Irrigation Department Tubewell Operators were mentioned. They were thereafter posted as Gram Panchayat and; Vikas Adhikaris, i.e. multipurpose workers.
15. By a closely followed Government Order of 26th of July, 1999, the word 'and' was dropped and the description finally became 'Gram Panchayat Vikas Adhikari'. In they 1999, some Fifty Two thousand workers from the eight departments were posted in different Panchayats.
16. In no village Panchayat, was more than one multipurpose worker posted.
17. There are about one lac twenty thousand villages in the State of Uttar Pradesh; the number of village Panchayats is about fifty two thousand. At the initial stage, therefore, the posting was roughly one multipurpose village worker per village Panchayat.
18. The State Government was clear in its policy that as the workers were coming to the Panchayats from different Departments they would have to receive training; naturally when multipurpose work is to be performed, even if it is at the lower level of villages, a certificates and degree of efficiency and familiarity had to be acquired before the workers could be expected to discharge their multipurpose functions.
19. It is on record that these multipurpose workers did receive training. How much training it was, how much training each individual multipurpose worker actually received it is not possible to go into because in that event for the purpose of mastering the details,; substantial issue in the case would never get any attention and the main point in the case would never be decided, Suffice it to say that training was contemplated, that training was administered and that training was duly received and, work started being done by these different workers of different Departments as multipurpose village Panchayat workers.
20. Then started a process, (the last point of which is this set of litigation, where on the 6th June, 2001 a government order was passed whereby workers of three Departments and the initially eight Departments were sought to be repatriated to their original Departments, i.e., they were sought to be brought back to their original Departments from their multipurpose duties. From being multidirectional, they were again to become in one sense unidirectional; from being entrusted with multiple duties relating to one village Panchayat, they would again comeback to their own Departments and might be involved with several villages, but the direction of involvement would be only one or only a few.
21. Another order was passed on the 20th of July 2004, which is the main stay of the appellants, Tubewell workers. But the 4th paragraph of that order is the main two stay of the appellants; in the initial portion of that order again workers of the said eight Departments were brought back to their-State Departments from under village Panchayats.
22. It is to be noted that the repatriated workers of the five Departments did not tope their repatriation lying down those were challenged in the Courts of law; writ petitions were filed and in each and every case those workers have been unsuccessful. We make references to the cases of Krishna Kant Tripathi 2002 (I) U.P. L.B.E.C. 475 and Manbodh Kumar Lal 2000 (2) U.P. L.B.E.C. 256. Certain other references would also be found in one of the judgments under appeal delivered on the 11th of August 2005 in Civil Misc. Writ Petition No. 53174 of 2005 and others. Reference should also be made to the main case, of Gauri Shanker and Ors. v. State of U.P. and Ors. which is a decision given in Special Appeal No. 1005 of 2004. The judgment was delivered on the 25th of August 2004.
23. In each of these cases, the Court land down that the repatriated workers have never lost their lien on their original posts in the different Government Departments and, as such their repatriation could not be challenged on any ground. It was held that hey were doing the work as Gram Panchayat Vikas Adhikaris no more as from deputationists. These decisions are binding decisions on us and we cannot in any manner decide differently on a point of law from the decisions given in these cases, we being also the Division Bench of two Judges.
24. The cases are binding as between the parties, but that is not any problem before us because the workers of the five repatriated Departments are not before us. In regard to the binding nature of these decisions as precedents the points argued before us are wholly different and the materials placed before us are also substantially different from what was available to the workers in the earlier cases. The issues raised before us on the basis of the different arguments are also totally different. It is to these that we must advert now.
25. Paragraph 4 of the Government Order dated 20.7.2004 is the paragraph which makes, crucial difference between the Tubewell Workers, who are before us now and the employees of the other five departments, who were repatriated first in the year 2001 and then again by the early part of the said very same order dated 20.7.2004.
26. The Government order originally is in Hindi as is customary in the Uttar Pradesh. We say nothing about this custom and system. However, translation of certain important documents in this case was obtained by us and after certain preliminary changes these translations have been accepted as perfect and accurate by all parties before us. The said fourth paragraph from the order of 20.7.2004 is set out below:-
4. Cadre by the designation of Gram Panchayat Development Officer is being revived according to collective number of sanctioned posts in all cadres of Gram Panchayat Adhikari, Village Development Officer (Social Welfare) and Tubewell Operator cadre working as Gram Panchayat Development Officer. Appointments in this revived cadre will be made in such number and in that condition only when due to any reason a substantial vacancy occurs in the post of an employee of Gram Panchayat Adhikari, Village Development Officer (Social Welfare) and Tubewell Operator cadre, posted under the control of Gram Panchayat. Powers of appointment and actual control of this cadre shall vest in the Panchayati Raj Department through District Panchayat Raj Officer.
27. So far as the personnel of the two other departments were concerned, the first paragraph simply staled as follows:- "(1) all multipurpose employees of Kisan Sahayak cadre...are being returned with immediate effect in public interest, back to their parent departments....
28. The second paragraph of the said order stated: "(2) consequent on returning back of employees of said cadres to their parent departments, the employees of Gram Panchayat Officer cadre, Village Development Officer (Social Welfare) cadre and regular Tubcwell Operator cadre only would now remain available in the pool of Gram Panchayat Development Officer....
29. It will be noted that only regular Tube well Operators are mentioned here. In paragraph 2 (c) of the said order, it was stated as follows;
2 (c). Decision in regard to Pan Time Tubewell Operators deputed in Gram Panchayats at present would be taken separately.
30. The whole of the order was purported to be passed by his Excellency the Governor "...in exercise of powers under Section 25 of the United Provinces Panchayat Raj Act, 1947.
31. Section 25 of the said Act contains powers of transfer as well as those of creation of posts of Gram Panchayat?
32. Sections 25(1) and (2) are set out below:-
25. Staff (I) Notwithstanding anything contained in any other provisions of this Act, any Uttar Pradesh Act, rules, regulations, or bye-laws or in any judgment, decree or order of any Court,
(a) the State Government may, by general or special order, transfer any employee or class of employees serving in connection with the affairs of the State to serve under Gram Panchayats with such designation as may be specified in the order and thereupon posting of such employee or employees in Gram Panchayats of a district shall be made by such authority in such manner as may be notified by the State Government;
(b) the employee or employees on being so transferred and posted in a Gram Panchayat, shall serve under the supervision and control of the Gram Panchayat on the same terms and conditions and with the same rights and privileges as to retirement benefits and other matters including promotion as would have been applicable to him immediately before such transfer and shall perform such duties as may be specified from time to, time by the State Government.
(2) Subject to the provisions of Sub-section (1), a Gram Panchayat may, after prior approval of the prescribed authority appoint from time to time such employees as may be considered necessary for efficient discharge of its functions under this Act in accordance with such procedure as may be prescribed:
Provided that the Gram Panchayat shall not create any post except with the previous approval of the prescribed authority.
33. On the basis of these basic materials, two extremely important questions arose. The first question was whether any new cadre, containing thousands of posts, of number equal to the number of deputed Gram Panchayat Adhikari, Gram Vikas Adhikari and Tubewell Workers was created by paragraph 4 of the said order.
34. The second question was whether the first question at all needs to be answered since no constitutional provision was ex-facie invoked by his Excellency the Governor in regard to making any changes in State employees' Rules. Without answering these questions, the case simply cannot be proceeded with.
35. In regard to the mentioning of only the Panchayat Raj Act in the order and the pointed silence maintained in regard to the Constitution and its Articles, our clear opinion is that it is a matter of absolutely no relevance. A quotation of a particular Section of the Act is in all ordinary and normal cases, both relevant and un-determinative and the position is exactly the same where the Constitution itself is concerned. A lot of argument was also advanced both in some cases in the Court below and before us as to which Article, his Excellency the Governor had acted upon, assuming that he had invoked the powers of the Constitution at all, In our opinion, the answer to this question is equally unimportant in the facts and circumstances of our case although we grant that in some different case the exact pointing out of the Article of the Constitution might be important and material.
36. So far as we are concerned, it little matters whether his Excellency the Governor exercised the executive powers of the State under Article 162 of the Constitution of India or his legislative powers in regard to State service under Article 309 of the Constitution of India. There is no competing order, ex-facie and admittedly framed under Article 309, which can be setup face to face and as against this order of 20.7.2004. If there were such an order of a legislative character passed under Article 309, and if the 20.7. exercise appears to have been an exercise performed under Article 162, then and in that event, it might have been that the sped anointed and directed exercise of, power under Article 309 would prevail over any such general exercise under Article 162.
37. It is not a situation like that; it is not a situation where the exact location of power in the Constitution as vested in the Governor is material. It is equally immaterial to enter into the rules of business and the authentication made of the several different Government Orders in the perspective of Article 166 of the, Constitution of India, Much argument was advanced on behalf of the appellants in the courts below, and some arguments before us that the impugned order of the 19th of July, 2005 being signed only by the Secretary; could not in any manner derogate from the order dated 20.7.2004. We are not of the opinion that this? argument has any substance.
38. Several eases were given to us on behalf of the State showing that if proper application of mind by or on behalf of the Governor is shown alirnde and proper authentications are shown either in affidavit or by production of later material, then and in that event, the non-compliance of the later sub-Articles of Article 166 is not fatal. We mention here the two cases of Dattatmya Moreshwar v. The State of Bombay and Ors., reported at and R. Chitralekha v. State of Mysore, reported at in this regard. The details need not be gone into as the matter, in our opinion, is though by clear.
39. On a whole reading of the order of 20.7., we are completely convinced of two things. The first is that the order was not passed wholly under the Panehayat Raj Act. 1947. This is because, until now no creation of any posts has been made which belongs to and is under any of the Gram Panchayats of Utter Pradesh; secondly all the workers at all material times having being and still being State employees, and their service conditions being materially, even very materially affected by the order of 20, 7., there is absolutely no doubt that for its effectiveness the power of his Excelleney the Governor has to be traced back to the Constitution, and not merely I he Panehayat Raj Act.
40. The second point about the power of the Governor to issue the orders and its exercise made in that regard have therefore to be answered in favour of the appellants. The next question, and in one manner of speaking the first and foremost question, is whether a new cadre of Gram Panchayat Vikas Adhikari was created by the said paragraph 4.
41. In the fundamental rules, a cadre is defined as a service or strength of service. In determining whether a group of employees or even a single employee in exceptional cases belongs to a different cadre or not, the whole facts and circumstances of the service has to be taken into account. After taking a good grip over the facts, a question has to be answered as to whether it is manifestly reasonable and just to opine that the group of employees in question is in a distinct and separate class from others. Whether a different class has been made out or not, will depend on numerous factors, which it is not possible exhaustively enumerated here and now. Some of the factors to be considered, would be salary, ways of appointment, ways of promotion,, disciplinary authorities, duties to be performed, perquisites attached and perhaps even legitimate expectations harboured by the employees in question.
42. One Supreme Court case was very heavily relied upon by Mr. R.N. Singh appearing for some of the appellants and that is the case of Shankar Pandurang Jadhav and Ors. v. Vice-Admiral, Flag Officer, Commanding-in-Chief and Ors. reported at .
43. Paragraph 9 of the said case was placed before us more than once. It was submitted therefrom that without the consent of a government employee in question his cadre cannot be altered unilaterally by the public employer. At least, it cannot be so altered without the most compelling of reasons, which cannot but justify such an alteration of cadre.
44. This principle itself can also be treated as a factor for determining whether an employee belongs to a different cadre or not. If it would be unjust to him to change his position, if it would alter seriously to his detriment -alter his position, if such alteration would have civil consequences which can justly be considered by the employee to be adverse to him, then and in that event, the alteration is a change of the type of a change of cadre.
45. Let us apply these principles to paragraph 4 and the position of the Tubewell Workers. In applying these principles, we also have to bear in mind, that orders affecting public service are to be interpreted in ways, which are not identical to the ways of, say, interpretation of the Constitution or the interpretation of a pure written private contract. The two great principles in interpreting a service order would be (i) to look at the words used, and this is a general common principle of interpretation; (ii) to look at the entire circumstances of the employee, the circumstances before the coming into effect of the order, the circumstances prevailing after the coming into effect of the order, reactions of the employees and the reactions of the affected employee both individually and as in a class. On applying these principles, the Court is to make an assessment in regard to the employment conditions. Once the assessment is made, if it is right and legal, the more it is examined and scrutinised the more correct the assessment will appear to be. However, if the assessment is erroneous, every bit of scrutiny will riddle it with holes and flaws and the judgment will appear to be clearly wrong and unrise.
46. On this principle, we have examined paragraph 4 for days and with the greatest of care possible. We have heard the parties and even sometimes compelled them to repeat their arguments. Now that arguments are completely over; We have absolutely no doubt in our mind that by paragraph 4, a new cadre of Gram Panchayat Vikas Adhikari was Created. The State Government had objected that creation of such thousands of posts in a cadre without the appropriate financial sanction from the financial side would be a matter of impossibility; it would not be merely a question of following or not following the business rule; it? would be saddling the Government with stupendous expenses without first examining whether the Government was ready, willing and able to bear such expenses on such Count. That the whole Cabinet happnued to approve of the 20.7.2004 order, Did not according to State, after the Section.
47. In our opinion, this objection is without any substance. The manner in which the new "cadre and its strength was created involved the Government in not one rupee of extra expenditure. The clear reading of paragraph 4 is that the new cadre is created with the strength of the number of multipurpose workers de-facto working as Gram Panchayat Vikas Adhikari, but that no such posts would be filled up either on 20.7.2004 or on any date proximate to it. The post would be filled up when and only when a substantive vacancy ¼ekSfyd fjDrh½ would occur in the post of, say, a Tubewell Operator in the cadre of Tubewell Operators, which cadre was and is in the Irrigation Department.
48. It is pertinent to note at this stage that the very, early order of 1.7.1999, the cadre of the Tubewell Operators and of the other employees from the eight Departments who had been transferred as multipurpose workers, was declared as dead cadres.
49. The declaration of death of the cadre was made in paragraph 11 in these words:-
11. No new appointment shall now be made by the State Government...against a vacancy occurring...of...the employees...brought under the control of Gram Panchayat as indicated in paragraph 4.
50. The said paragraph 4 mentioned the eight Departments including the Irrigation Department and the Tubewell Operators.
51. By a subsequent order, the 1st of May, 2003, the effect of paragraph 11 was declared as the cadres having been pronounced as dead.
52. We do not accept the argument of the appellants that the cadres being declared as dead, and the cadre of the Tubewell Operators also being declared as dead, the Tubewell Operators could, but then and there? start belonging to some other cadre and this other cadre on or after 20.7.2004 could be none other than the cadre of Gram Panchayat Vikas Adhikari.
53. Although the word 'dead' has been used in 2003, the meaning to be ascribed to this word in the context of the service of the appellants, is that the Government had finally decided no new appointments would be made in these cadres. The Tubewell Operators therefore remain and remained in the cadre of Tubewell Operator in the Irrigation Department. But by the said paragraph 4, they were-also m inextricably connected with the cadre of Gram Panchayat Vikas Adhikari under the day to day control of the Gram Panchayat; as and when vacancies those in the cadre of the Tubewell Operator, the cadre alie only die slowly and as and when appointments were made by Panchayat Raj Department in the cadre of Gram Panchayat Vikas Adhikari, that cadre, already born on 20.7.2004, aill Coutinue to gain strength and life. This is why the creation of new cadre with some Thirty Two thousand posts involved the Government in absolutely no financial implication. This is why the creation could be made by the Cabinet, which was most certainly involved fully in the promulgation of the order of 20.7.2004.
54. This interpretation no more than fits the words to the facts, which obtained before and after July 2004. The Tubewell Operators as the qualified persons in the most technical of the operations entrusted to the multipurpose workers? came over to the Panchayats in, 1999 and continued to work there; they were all along paid from the finances of the Department of Agriculture; they remained for the purpose of their service Rules including promotional avenues Tubewell Operators in the Irrigation Department, but they received training as multipurpose workers and started functioning as such. They were amongst the Fifty Two thousand and odd multipurpose workers sent to the Panchayats in 1999 A large group although not the numerical majenty or more than 50% of the group was sent back between 999-2004 to the parent departments in the State. Not so the Tubewell workers. Not so the Gram Panchayat Adhikaris. Not so the Gram Vikas Adhikaris of the Social Welfare Department.
55. After the passing of the 20.7.2004 order, the Tube well Operators continued to work as multipurpose workers until the impugned order dated 19.7.2005 was passed affecting them. They continued to enjoy all the perquisites attached to the multipurpose workers; 'they continued to enjoy the entrustment of different duties; their description as Gram Panchayat Vikas Adhikari had already been given in 1999. In spite of the description being given to several other workers also, the employees of five departments were returned to the parent departments in the State. But a conscious decision was taken on 20.7.2004 that a hardcore pool would remain working as Gram Panchayat Vikas Adhikari and they would thenceforth be connected with a cadre the employment to which would not be given so long as the Tubewell Opreator and Workers of two other Departments operated and worked, but would be given in their place and state and when they vacated office.
56. It was a clear decision to entrench the Tubewell Workers as what they de-facto were on 20.7.2004 and such entrenchment was ordered with full legal solemnity by and under the order of his Excellency the Governor.
57. We are therefore of the opinion that a new cadre of Gram Panchayat Vikas Adhikari was created with a strength of some Thirty Five thousand on 20.7.2.004 and that the appellants-Tubewell Operators are so, inextricably connected with this cadre as not to be removable therefrom by a cursory order of 19.7.2005 to which we shall, turn our attention immediately.
58. The said order is in five paragraphs, but the most important of those are paragraphs 1 and 2. The said two paragraphs from the order of 19.7.2005 are set out below:-
1. All State Tube Wells along with their assets may again be transferred to Irrigation Department from Gram Panchayats.
2. Tubewell Operators Part Time Tubewell Operators of Irrigation Department, who were transferred as multipurpose employees along with Tubewell on the post of Gram Pattchayat Development Officer under the control of Gram Panchayats, may be again transferred along with Tubewells buck to their substantive posts of Tubewell Operators Part lime Tubewell Operators and under the control of Irrigation Departments. To maintain the control of Gram Panchayai also on these employees their monthly attendance be sem to the concerning officer of the Tubewell section by, 'he Chairman of Water Management Committee.
59. One of the very substantial and basic challenges to this order was a challenge levelled under Article 14. This was levelled on a conspectus of the whole situation and therefore, it is a heavy weight challenge. We shall come to the other challenges also, but this extremely serious objection needs to be looked into first.
60. The argument was that a simple automatic transfer of the Tubewell Workers made on 19.7.2005. without stating" the stage, without giving compelling reasons without saying why a large scale policy change had been made within 'one year "affecting Twenty Two thousand State emplovees and order of this nature could not be passed. It was like the Government acting autocratically like some outdated Nawab saying one day go here and the next go there. To justifyjhis criticism, the history of Gram Panchayat multipurpose workers was gone into.
61. We have already mentioned how the necessity of Gram Panchayats was felt by the 73rd Amendment of the Constitution in 1993, several sub-Articles under Article 243 were introduced, following which there came Section 15 in the U.P. Panchayat Raj Act, 1947.
62. Mr. R.N, Singh submitted that around 1999 when more than half a lac multipurpose workers were sent to Panchayats, the World Bank had offered assistance to the State Government of the huge sum of Rupees Five Thousand Crore. It appears from his submission that the money had actually been received by the State at that time for the purpose of village empowerment only. No particular submissions were made on behalf of the State denying any receipt or saying that only a very small part or a particular percentage of Rupees Five Thousand Crore were received or that nothing was received at all.
63. On a high level Cabinet decision, which was also there in 1999 just as it was there in 2004, the first steps towards serious village empowerment were taken. Learned State Counsel has described these steps as experimental measures. We are unable to agree that those steps can be looked upon as were experimental measures, which can be either proceeded with or not as the State Government chooses. These were measures, which the Constitution directed to be taken and these were measures, which the State Government made up its mind to adopt in practice by its legislative wing putting in Section 15 in the 1947 Act. These were not experimental measures, but; serious Government measures taken on full consideration with eyes fully open in at unilateral direction which the Constitution opened up and directed the State to follow. We are not minded so far as to go and say that once a State declares by some law Panchayat empowerment, then and after that, the State is incompetent to curtail that law in any manner whatsoever or re-centralise what has been once decentralised; we do not go that far and we cannot go that far. The Constitution has to be read as a whole and the States plenary powers in several matters as well as the concurrent powers in several others, cannot be held to be impliedly cut down totally by interpretation of sub-Articles of Article 243. The Constitution are respect to be read:is a whole; we do however have no hesitation in opining that the State cannot and should not re-centralise something already decentralised without there being cogent materials in that regard which, "on challenge, can be demonstrated easily before the Court without there being any lack of transparency in it.
64. Mr. S.K. Kalia appearing for some of the appellants gave us a judgment of Hon'ble Mr. Justice Krishna Iyer, as his Lordship then was, in the case of Warendra Madivalapa Kheni, reported at and placed paragraph 7 therefrom.
65. The following passage from the said paragraph is set out below:-
A government, under our Constitution must scrupulously and energetically implement the principles fundamental to the governance of the country as mandated by Article 37 and, if even after holding elections Development Boards, are allowed to remain moribund for failure to notify the curtailment of the administrator's term, this neglect almost amounts to dereliction of the constitutional duty. We are unhappy to make this observation but power to the people, which is the soul of a republic, stands subverted if decentralisation and devolution desiderated in Article 40 of the Constitution is ignored by executive inaction even after holding election to the floor-level administrative bodies. The devolutionary distance to ideological Rajghat from power-jealous State capitals is unwillingly long indeed, especially in view of the familiar spectacle of long years of failure to hold elections to local bodies, supersession aplenty of local self-government units and gross inaction even in issuing simple notifications without which elected bodies remain still born.
66. In the face of this background a clear policy was formulated in 1999. The order dated 1st July in that year startup with the ordiw, in order to give corporeal shape to decentralisation of power as contained In the 73rd Amendment of the Constitution and the Uttar Pradesh. Government with the objective of strengthening the three tier Panthayat Raj system for ensuring public participation....
67. Then folled the steps taken towards empowering Panchayats.
68. There is nothing on record before us to show convincingly that the State Government has now finally decided to end its, "experiment" and call back each and every multipurpose employee from each and every Panchayat Raj to the different State Departments and therefore they are calling back the Tube well workers also.
69. We shall mention now certain other orders passed by the State Government which, we have to say, give us the impression that the State is not coming clean before us. It is not saying clearly that there will be no more Gram Panchayat Vikas Adhikaris at all. We shall state immediately why they cannot say so, Yet they are calling back 22,000 out of about 32,000 workers still now left with multipurpose duties. If this is allowed, the Panchayat Raj empowerment will be ending finally. Of course the State can end it finally, but it cannot do so without a policy change which carries to an objective and impartial mind both credibility and conviction.
70. That the cadre of Gram Panchayat Vikas Adhikaris are not abolished all together is clearly proved by the fact that Gram Panchayat Adhikaris, who are about 8000 in number arc still in the position of multipurpose workers working at different village Panchayats. 'This brings us to a particular government order which, amongst others, we propose to set aside. This relates to Gram Panchayat Adhikaris. It is dated the 8 of September 2005. It bears number 2996/33-1-2005-696/2000. This document has unfortunately not yet been translated/although we did ask for a translation of it. Paragraph 2 of the said order clearly states that the cadre of Gram Panchayat Adhikaris is being revived. It will be remembered that the cadre of Gram Panchayat Adhikaris along with the cadre of Tubewell Operators and others was declared as dead in 1999-2003. The reason for revival of this cadre is that the State Government will thereby get an opportunity of making a fresh appointment of Gram Panchayat Adhikaris in the revived cadre who, automatically by reason of paragraph 4 of the order of 20.7.2004, will start work connected with the cadre of Gram Panchayat Vikas Adhikari. Advertisements were issued in regard to filling up of these posts and new induction of Gram Panchayat Adhikari. We passed our first interim order in these matters 12 days after the said notification, i.e. on 20.9.2005. We stayed all appointments pursuant to the advertisements issued on the basis of the revival of 8.9.2005, and we now on a full hearing feel convinced to the interim order was appropriately passed and it should be finally confirmed. No cogent explanation comes from the State Government to state why these 1500 additional Gram Panchayat Vikas Adhikaris or multipurpose workers could not be retained from the Tubewell operators but had to be appointed afresh on a fresh selection by the Government in power.
71. The only reason why the order dated 19.7.2005 was passed according to the State Government is a status report dated 25.4.2005. The status report, so called, is a document obtained by the State Government itself without hearing any of the Tubewell workers or giving any show cause notice to any of them or even intimating them before hand that such status report about them was being called for by the Government on which they wanted to take serious steps and actions.
72. The status report mentioned that about 4000 Tubewell workers were watched by the Government spies, and that they were found to be sleeping on their job of Tubewell- operations, working only for a few hours on a few days of a week although their duties demanded for greater attention. On the basis of this simple test conducted behind the back of all the persons affected, the decision to take back the Tubewell operators from their multipurpose jobs was overnight thrust upon them on 19.7.2005.
73. Did anybody make any serious attempt to find out 'whether in this alleged body of indolent Tubewell Operators, there were 1500 or 2000 good and efficient persons Who would appropriately fill the government Necessity of the-Gram Panchayat Adnikaris felt on or about 8.9.2005? Not at all Nothing like this was done, "pie Tubewell operators, it was decided, had to come back. If 1500 additional Gram Panchayat Vikas Adhikaris were needed, they would be appointed afresh in the shape of Gram Panchayat Adhikaris by the State Government We ask ourselves I this question, under the Constitution that we live-how can any Court pass action of this type as constitutional, fair and just? The problems do not stop here. While the case was going on learned Counsel for the State Mr. V.K. Singh made every attempt to save the case of the State Government; I he acted all along with extreme fairness and industry assisting the Court in every manner that we called for. If the case of the client he represents falls, that is not, because of any lack of effort or expertise, but because the case itself is unsustainable.
74. Mr. V.K. Singh submitted that paragraph 4 of 20.7.2004 made hardly any sense if read by itself. It had to be read with the other paragraphs. It created no cadre. The employees were merely on; deputation just like the employees of the other Departments. It was for the State Government to call them back and assign to them their old duties if public good demanded the same. The State Government was the best judge of the public good.
75. As submissions which we have been unable to accept these are fully understandable although not acceptable. During the course of hearing, we found another government order this time dated 25.1.2006 which is extremely singular. The government order contains one new operative part which we shall set out hereafter, but contains prior thereto; about two or three pages of explanation and "helpful" construction. The order of 25.1.2006 seeks to construe the order of 20.7.2004 and especially paragraph 4 thereof. The order states that no cadre was created. Several other matters are commented upon? it is too elementary to state that the construction of a particular order is in the province of the Court and it is even more clearly so when the matter of construction of a particular order is subudice with hearing going on, if not day to day, at least week to week and judgment expected any day. It is elementary but r we have to state it because elementary principle has not been followed by the State Government. We have particularly refrained from paying any attention to that part of the government order dated 25.1.2006 which a construction oversteps the constitutional limits and seeks to put forward of earlier government orders.
76. The operative part of the said order reads as follows, and this was again translated on our request into English:-
the Governor has ordered that para 4 of the Government Order No. 1534/33-1-2004-696/2000 dated 20 July, 2004 to be amended as follows:
All cadres (Gram Panchayat Adhikari Cadre, Gram Vikas Adhikari (Social Welfare) Cadre and Tube-well Operator Cadre working as Gram Panchayat Vikas Adhikari are revived equal to the collective number of the sanctioned post in above three cadres and appointments on there posts would be made in the same number and only in that condition when any substantive vacancy arises on the post of Gram Panchayat Adhikari, Gram Vikas Adhikari (Social Welfare) and the Tube-well Operator Cadre.
Thus the Government Order No. 1534/33-1-2004 696/2000 dated 20 July, 2004 shall be deemed to have been amended to this extent.
77. The first problem about this order is that it does not state whether the new order is in purported substitution of the said paragraph 4, or in purported addition to it or in purported substitution of the said paragraph. The respondents-State submitted that the said paragraph was the wholesale substitution of the earlier paragraph 4, If it is, then it suffers from the same constitutional problem of being arbitrary sudden and without any reason because it reverse's the Panchayat Raj empowerment steps without there being any declaration of credible reversion and alteration of Government policy.
78. This order of 2006 suffers from the voice of vagueness; it can and should be struck down on this ground alone. The Government does not state clearly whether the new paragraph is in substitution, addition or pro-tanto substitution. It is left to learned Counsel to make submission. If the paragraph is inserted in substitution, its effect will be different fronty if it is inserted in addition be position of more than Twenty Thousand State employees cannot be affected in this vague and cursory manner. It is unconstitutional and absolutely improper exercise of governmental power. If it is improper, it is certainly unreasonable, in fact much worse, than that and therefore this order must fall. We are now in a position to explain/why in our opinion, the Government is not coming dean in this matter. If there is already a cadre created on 20.7.2004 of Gram Panchayat Vikas Adhikaris, which we have held it is,' then the order of 25.1.2006 if read along therewith, creates a most absurd situation. If a Tubewell Operator were to retire today, then on the basis of paragraph 4, the Panchayat Raj Department would be entitled to appoint a Gram Panchayat Vikas Adhikari and on the basis of the order of 25.1.2006, the Irrigation Department would be entitled to appoint a Tubewell Operator because that cadre has been revived by the order of 25:1.2006. "Which appointment will they make? Nobody knows. Will it be decided tomorrow in the Cabinet that they would rather make appointment of Gram Pancrrayat Vikas Adhikaris than Tubewell Operators? What stops the Cabinet from deciding so tomorrow? Nothing at all and, if such a decision is taken, the Twenty Two thousand Tubewell Operators will have gone back to their Irrigation Department by now. This is not how a Government should operate, passing orders so that nobody knows whether they will act one way or other the next month or the next year. We strike down the order of 25.1.2006 on the ground of yagueness and unconstitutional.
79. Now an explanation has to be made about the position of the Part Time Tubeweli Operators. They are not of any mean| strength; the number of, Part Time Tubeweli Operators is approximately seven thousand. The description 'Part Time is wholly misleading; there is nothing Part Time about them. Their only problem is that they do not yet have any permanent sanctioned posts in the State Government.
80. However, the order of 19.7.2005 states in paragraph 2 that Part Time Tubewell Operators be transferred back to their substantive posts of Part Time Tubeweli Operators.
81. Although there are not apparently sanctioned posts of Part Time Tubewell Operators, yet they are in a position, which is as secure as the position of a State employee in a permanent sanctioned post.
82. They have been working as multipurpose workers with the Tubewell Operators from as early as 1999. The order of 2004 in paragraph 2 (c) stated that their case would be considered separately. The separate consideration came only on 19.7.2005 when they were being purportedly repatriated.
83. There is a decision of a Division Bench of our High Court at Lucknow, which clearly states that the Part Time Tubewell Operators are in secure service. In the case of Rajendra Kumar Tiwari and Ors. v. State of U.P. and Ors. involving 277 writ petitions, Hon'ble Mr. Justice Ashish N. Trivedi and Hon'ble Mr. Justice P.C. Verma ordered in the Lucknow Bench on the 1st of September, 2000 after hearing counsel for both sides as follows:-
Since the petitioners who were appointed after 1.10.1986 as Part-Time Tubewell Operators and others whose cases are covered by Rule-4 of the Regularisation Rules have been merged en bloc and are similarly situate in the Gram Panchayat Department and are working as Gram Panchayat Evam Vikas, Adhikari (Village Development Officer), it cannot be said that there is any discrimination between those who were appointed prior to 1.10.1986 and those who were appointed after 1.10.1986 and, therefore, we are of the opinion that there is no justification for continuance of the interim orders. The interim orders granted by this Court have become infructuous with the absorption of the petitioners in Gram Panchayat Department.
84. The respondents stated that this is no finding of the Court, but a mere repetition of the statement made by the writ petitioners' counsel Mr. Misra that they were in service in the Gram Panchayat Department en bloc.
85. The State also gave us a judgment of an Hon'ble Single Judge in the case of Wazir Hasan and others involving numerous writ petitions as in the other case wherein a judgment delivered on the 14 of May, 2002, it was said with regard to the Lucknow judgment as follows:-
the said judgment, therefore, did not,, decide the question of absorption at all.
86. We are not hearing an appeal from the judgment of the said Hon'ble Single Judge, is a matter of precedent and interpretation? However, we respectfully differ and disagree. It is not permissible to look back behind the order of the Lucknow Bench, which was passed several years ago and on the basis of which the Part Time Tubewell Operators have worked exactly like the Tubewell Operators without any distinction or different being drawn amongst them either in the matter of salary or in the matter of perquisites or in the matter of duties. We declare therefore that the Part Time Tubewell Operators are as inextricably connected with the cadre of Gram Panchayat Vikas Adhikaris as the Tubewell Operators themselves, but that once a Part Time Tubewell Operator retires or otherwise vacates office, no appointment can be made in that substantive vacancy ¼ekSfyd fjDrh½ in the post of the Gram Panchayat Vikas Adhikari, can be done only when a Tubewell Operator vacates office or Gram Panchayat Adhikari or a Gram Vikas Adhikari (Social Welfare) might mention in passing that the number of Gram Vikas Adhikaris is just a few hundred, a little less than one thousand.
87. The recall of the Part Time Tubewell Operators by the order of 19.7.2005 thus stands on an idenfical footing with the recall of the Tubewell Operators themselves and the recall is bad in each case and for the same reasons.
88. In the light of this discussion, we rake mention of the case of Kailash Chandra Sharma, reported at , paragraph 11 from which was placed by Mr. Kalia; to be read with this case is the case of A.K. Kaul, reported at . The arguments, repeated also on behalf of other appellants show that State policy is not immune from examination of its constitutionality. The reasonableness of the policy, the existence of a rational and comprehensible policy as the base of serious and large scale government orders, these are all matters of scrutiny by the writ court.
89. If there are any extraneous factors for the passing of the government orders and not an understandable policy, that again might be made a subject of challenge before a Court of law. He also gave the case of Consumer Action Group, reported at 2000 (7) SCC 425 and placed paragraph 8 from it. The submission on this basis was that the government orders are supposed to have clear and positive nexus with the declared government policies and must not go against those policies, in which case they will become irrational and unconstitutional.
90. In our opinion, these cases as of these principles have application in the present case also. We are of the opinion that the directive of 19.7.2005 and the Government order dated 25.1.2006 are devoid of any understandable policy backing and/or directly contrary to the still harboured government policy of decentralisation, as far as possible. It was said that annual loss for these Tubewell workers in the Panchayat Raj has been about Rs. 33 Crores, but it should not be forgotten that when in 1999 decentralisation was first ordered, the government was harbouring used a problem of a far larger loss of Rs. 500 Crores. We find that the orders of 19.7.2005 and 25.1.2006 are faceless, incomprehensible, vague and without any support of government policy, inspiring no confidence, no conviction and no certainty on the basis of which any Court can act or can direct any of the citizens under its protection to be act.
91. The last and principal important point, but not the least, is that of legitimate expectation. The point was not pleaded in any of the original writ petitions. We feel quite convinced that because of certain remarks which fell from-the Court, certain last minutes pleadings were delivered on behalf of some appellants; these we have taken on record. The doctrine of legitimate expectation is mentioned-there. The respondents have had notice that the point would be argued. They have also replied on such arguments. Similarly the respondents had notice that even though there is no amendment petition on record, the order of 25.1.2006 was under scrutiny by the Court and could be set aside by us, if we and it to be unconstitutional, and we gave clear warning in this regard while that case was going on. This doctrine of legitimate expectation we must now examine.
92. Mr. R.N. Singh submitted on the basis of S.K. Saha scase, reported at that on an en bloc transfer of employees from a government Department to a government Company, no lien is left in the original post, but that the employees, after accepting then bloc transfer become the employees of the government Company. It was submitted that the en bloc transfer from the Department of Agriculture to the, Panchayat Raj Department as multipurpose Government employees the Tubewell Operators in this position, or at least in a position where they could legitimately expect that they would never be dislodged from being connected with the cadre of Gram Panchayat Vikas Adhjkari.
93. The case of National Buildings Construction Corporation, reported at was placed for expounding this doctrine. There are many cases on this doctrine now, but it will suffice for us to set out below paragraph 20 from the said judgment and the first sentence of paragraph 21:,
20. Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service laid down that the doctrine of "legitimate expectation" can be invoked if the decision which is challenged in the court has some person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefits or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to he permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn.
21. The Indian scenario in the field of "legitimate expectation" is not different.
94. The submission was that the doctrine of legitimate expectation gives rights, both substantive and procedural. The substantive right is given in this manner, that the legitimate expectation is not to be defeated arbitrarily or merely at the will of the ether party welding employer's power. The procedural part of the law is that if legitimate expectations are to be interfered with, then the rules of natural justice must be obeyed and the person likely to be affected, must be heard and given an opportunity to explain why according to him his position should not be affected in the manner proposed.
95. We are of the opinion that the facts fit to the case of legitimate expectation here. The Tubewell Workers can legitimately expect to remain on as multipurpose Gram Panchayat employees unless the whole concept is totally done away with.
96. The State sought to explain by saying that no work remains in the Gram Panchayats now to be performed by these additional twenty two thousand Tubewell Workers. Some eight thousand Gram Panchayat Adhikaris and some one thousand Gram Vikas Adhikaris (Social Welfare) that will be left in the pool of Gram Panchayat Vikas Adhikari, would be sufficient for discharge of all multipurpose duties for the Gram Panchayats. The question naturally arose a to how a mere body of nine thousand multipurpose workers could look after the multipurpose works of fifty two thousand Gram Panchayats. Would one worker look after the multipurpose work of four or five Gram Panchayats? That was certainly not the policy of 1999, which envisaged at least one multipurpose worker per Gram Panchayat. yen on 17.1.2006. circular was issued from the Commissioner of Village Development of Uttar Pradesh to all the District Magistrals and Chief Development Officers of the State in various respect. The heading of that directive was that it was for implementation of National Village Income Guarantee Scheme. The fifth item of the said directive even in January, 2006 stated that at the level of each Gram Panchayat, a whole time employee should be made certain.
97. Nonetheless, an argument was made that the various State departments which had recalled the multipurpose workers to the five different State departments all looking after the Panchayat work in regard to the jobs of those Panchayats as such the multipurpose workers who are now stationed do not have to perform the work of those department say Family and Healthcare Department.
98. This submission has no factual justification before us. The work entrustment made to multipurpose workers under various items in 1999 is not touched in any manner. There is no Government Order stating that because employees of such, such and such departments have been withdrawn from the multipurpose employees status, the works of those departments are' no longer to be performed by the multipurpose workers who are still attached to the Gram Panchayats. There is no affidavit to this effect either from Mr. V.K. Singh, learned Counsel for the respondents submitted that if we needed an affidavit, a clear affidavit would be filed, but the matter should not wait for that long. The Court's necessity for the purpose of pronouncing a judgment should not be the necessity for filing an affidavit. If the Government has made a policy that the multipurpose nature of work should be cut down, then that policy should be clear and well known and liable to be acted upon by all and sundry after giving due publicity and publication. It cannot be left in a vague stage. We do not feel at all convinced that the work of the multipurpose workers has been cut down either factually or on a policy basis from any particular point of time.
99. The legitimate expectation of the Tubewell Operators to work on as multipurpose workers with the multipurpose duties as originally enumerated in 1999, is therefore left untouched. They are-nevenheard in this regard; they were never given any intimation in this regard; they have never known of any declared Government policy on the basis of which their legitimate expectation can be said to have lost its base and foundation. Their legitimate expectation to remain on where they are, cannot thus be defeated by cursory orders passed to that effect.
100. The appeals are therefore allowed. The judgments under appeal are set aside. The writ petitions are all allowed. The interim orders are all confirmed.
101. Before we pass the/clear orders in sequence, one single matter remains to be mentioned. This is about the Tubewell themselves. In the first paragraph of the order dated 19.7.2005, the) Tubewells and the connected properties are transferred to the Department of Irrigation along with the Tubewell Operators. The stand repeatedly taken by the Government before us, on query repeatedly put by us, was that it will be very inconvenient that the Government to have Tubewell Operators under one department and the Tubewells they operate under another. We feel that this submission is imminently justified. If the Department of Agriculture has more finance for Tubewells, then the same might be made available to the Panchayat Raj Department or even the Village Panchayat by seeing to it that the backbone of the ordinary U.P. farmers' irrigation does not suffer because of Government it red-tape and division of work. we cannot permit the Tubewells to go back to the Department of Irrigation and thus cause and unworkable situation arise when the Tubewell Operators are continuing to remain in the Panchayat Raj Department attached to the Village Panchayats. As such the whole of the order of 19.7.2005 is to be treated as sod, and it has to perish totally.
102. The Government Orders and directives dated 19.7.2005 and 25.1.2006 mentioned above are set aside and cancelled. The Government Order dated 8.9.2005 seeking to revive the dead cadre of Gram Panchayat Adhikari is quashed and set aside. The Tubewell Operators and Part Time Tubewell Operators are dechired to be inextricably connected with the cadre of Gram Panchayat Vikas Adhikari, which is declared to have been created by the Government Order of 20.7.2004. The appointment thereto shall be made as mentioned in the order. The Government will be at liberty to frame rules for the purpose of giving this cadre a final shape in furtherance of the 73rd Amendment of the Constitution and its policy and objective. The Part Time Tubewell Operators shall be treated as permanent employees under the same service conditions as the Tubewell Operators as far as practicable. If more multipurpose workers are needed in the distant future, the State Government will be at liberty to obtain unto itself the power of appointing Gram Panchayat Vikas Adhikaris on cessation of employment of Part Time Tubewell Operators in the same manner as it has arrogated to its, power of appointing multipurpose workers on cessation of employments of Tubewell Operators.
103. No order as to costs.