# Health Workers and another v. State of

- **Citation:** (2000) 3 ILRA 226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-07-01
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/health-workers-and-another-v-state-of-39447
- **Pages:** 6

## Text

3All] Manbodh Kumar Lal and others V. State of U.P. and others
226

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By the Court

1. In the writ petition as also in the
Special Appeals on hand, the challenge is
to the validity of the Uttar Pradesh
Panchaya Raj (Amendment) Act, 27 of
1999 and the G.O. dated July 1, 1999
pursuant to which the services of the
village level employees of the State
Government serving in the departments
referred to in the G.O. aforestated were
transferred to Gram Panchayats. The
learned Single Judge dismissed the writ
petition Nos.27939 of 1999 (U.P. Basic
Health Workers and another V. State of
U.P. & ors.) and 27937 of 1999 (Smt.
Shobha Sharma V. State of U.P. & Ors.)
by means of the judgment and order dated
13.7.99, the correctness of which has been
canvassed in the instant Special Appeals.
Writ petition No.3329 of 1999 has been
instituted on behalf of the U.P. Gram
Panchayat Adhikari Sangh whereas writ
petition No.27939 of 1999 from which
stemmed the Special Appeal No. 591 of
99 was instituted on behalf of the U.P.
Basic Health Workers Association and
Writ Petition No.27937 of 99 giving rise
227 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
to Special Appeal No.709 of 99 was
instituted by appellant- Smt. Shobha
Sharma, claiming herself to be the
President of Mahila Karamchari Sangh,
Uttar
Pradesh-
an
Association
of
Auxiliary Nurses and Mid-wives. Since
these cases are knit together by common
questions of law, they are amenable to
common disposal by a composite order.

2. Sri Dinesh Dwivedi, learned
counsel appearing for the appellant began
his submission assailing the transfer of the
employees under the Gram Panchayats
while Sri R.P. Goel, Advocate General
appearing for the State articulated his
submissions in vindication of the U.P.
Panchayat Raj (Amendment) Act, 1999
and the consequent transfer of services of
the
village
level
employees of the
concerned departments.

3. In order to get a hang of the
controversy involved in the case, a brief
sketch leading to enactment of the U.P.
Panchayat Raj (Amendment) Act, 1999 is
necessary.
It
is
by
seventy-third
Amendment made in the year 1992 that
Art.
243-G
was
inserted
in
the
Constitution, which dwells upon powers,
authority,
and
responsibility
of
Panchayats. It may be abstracted below as
under;

"243G. Powers,
authority
and
responsibilities of Panchayats- Subject to
the provisions of the Constitution, the
Legislature of a State may, by law, endow
the Panchayats with such powers and
authority as may be necessary to enable
them to function as institutions of selfgovernment and such law may contain
provisions for the devolution of powers
and responsibilities upon Panchayats at
the appropriate level, subject to such
conditions as may be specified therein,
with respect to-
(1) the preparation of plans for economic
development and social justice;
(b) the implementation of schemes for
economic development and social justice
as may be entrusted to them including
those in relation to the matters listed in
the Eleventh Schedule."

4. A glance at Art. 243G would
crystallise that the Legislature of a State
has been ceded the power to endow the
Panchayats, by law, with such powers and
authority as may be necessary to enable
them to function as Institutions of selfgovernment and such law, it is further
envisaged therein, may contain provisions
for
the
devolution
of
powers
and
responsibilities upon Panchayats at the
appropriate level with respect to - (a) the
preparation
of
plans
for
economic
development and social justice; and (b)
the
implementation
of
schemes
for
economic development and social justice
as may be entrusted to them including
those in relation to the matters listed in
the
Eleventh
Schedule;
Health
and
sanitation, including hospitals, primary
health centres and dispensaries; Family
welfare;
and
Woman
and
Child
development, are the matters enumerated
respectively at Item Nos. 23,24, and 25 of
the Eleventh Schedule of the Constitution.
With intent to actualising the objectives
engrafted
in
Art.
243G
of
the
Constitution, the State Legislature enacted
U.P. Panchaya Raj (Amendment) Act 27
of 1999 whereby the following sections
came to be substituted in place of
Sections 25 and 25A of the United
Provinces Panchayat Raj Act, 1947:

"25. (1)
Notwithstanding
anything
contained in any other provisions of this
3All] Manbodh Kumar Lal and others V. State of U.P. and others
228

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 as 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 subsection (I), a Gram Panchayat may, after
prior aproval of the prescribed authority ,
appoint from time to time such employee
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.

(3) The Gram Panchayat shall have
power to impose punishment of any
description upon the employees appointed
under sub-section (2) subject to such
conditions
and
restrictions
and
in
accordance with such procedure as may
be prescribed.

(4) The Gram Panchayat may delegate to
the Pradhan or to any of its Committee,
subject to such conditions and restrictions
as may be prescribed, the power to
impose any minor punishment upon the
employees appointed under sub section
(2).

(5) An appeal from an order imposing
any punishment on an employee under
sub-section (3) shall lie to such officer or
Committee as may be specified by the
State Government by notification.

(6) The prescribed authority may, subject
to such conditions as may be prescribed,
transfer any employee referred to in
clause (b) of sub-section (I) from one
Gram Panchyat to any other Gram
Panchayat within the same district and the
state Government or such other officer as
may be empowered in this behalf by the
state Government may similarly transfer
any such employee from on district to
another.

(7) A Nayay Panchayat may, with the
previous approval of the prescribed
authority, appoint any person on its staff
in the manner prescribed. The person so
appointed
shall
be
under
the
administrative control of the prescribed
authority who shall have power to
transfer, punish suspend, discharge or
dismiss him.

(8) Appeal shall lie from an order of the
Prescribed
authority
punishing,
suspending, discharging or dismissing a
229 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
person under sub-section (7) to an
authority appointed in this behalf by the
State Government.

25-A. The State Government, or such
officer or authority as may be empowered
by it in this behalf shall appoint a
Secretary from amongst the employees
referred in clause (b) of Sub section (1) or
sub-section (2) of section 25, who shall
act as secretary of such Gram Panchayat
or
Gram
Panchayats,
the
Gram
Panchayats within whose territorial limits
such Gram Panchayats are situated and
perform such other duties as may be
prescribed by the State Government or
such officer or authority as may be
empowered in this behalf by the State
Government."

5. Antecedent to Act 27 of 1999, an
Ordinance captioned as Uttar Pradesh
Panchayat Raj (Amendment) Ordinance,
1999 was promulgated on June 27, 1999
for the self-same purpose. This ordinance
stood repealed by aforesaid U.P. Act, 27
of 1999. The focus of challenge herein is
to the validity of clauses (a) and (b) of
Sub-section (1) of Sec. 25 of the U.P.
Panchayat Raj Act, 1947 as it stood
substituted
by
U.P.
Panchayat
Raj
(Amendment) Act, 1999 and that of the
G.O. No.3467/33-1-99-222/99 Panchayati
Raj
Anubhjag-1
Lucknow
dated
July1,1999 issued in exercise of power
under sub-section (1) of Sec. 25 of the
U.P. Panchayat Raj Act, 1947 whereby
certain State functions hitherto being
performed by Govt. Departments have
been delegated to Gram Panchayats. In
other words, the functions of various
government departments referred to in the
G.O. dated 1.7.99, came to be transferred
to Gram Panchayats.

6. The Uttar Pradesh Panchyat Raj
(Amendment)
Ordinance,
1999
that
subsequently exalted itself to become
U.P. Act 27 of 1999 does not detract from
legislative competence and in fact, the
submission of Sri Dinesh Dwivedi does
not weave round the question that the
State Legislature was not competent to
make the enactment in question. Entry
No. 5 of List 2 empowers the State
Legislature to make law in respect of
Local Government i.e. the Constitution
and powers of Municipal Corporation,
Improvement
Trust,
District
Boards,
Mining Settlement Authorities and other
Local authorities for the purposes of local
self government or village administration
and Entry no. 6 empowers the State
Legislature to make law in respect of
public health, sanitation, hospital and
dispensary.
Organisation
of
village
Panchayats
with
such
powers
and
authority as may be necessary to enable
them to function, as unit of selfgovernment has been one of the directive
principles of state policy as enshrined in
Art. 40 of the Constitution. Art. 243G
inserted by Constitution (Seventy-third
Amendment) Act, 1992 enjoins upon a
State Legislature to endow the Panchayats
with such powers and authority as may be
necessary to enable them to function as
institution of self-government by means
of appropriate legislation which may
contain the provisions for devotion of
powers and responsibilities upon the
Panchayat at the appropriate level subject
to such restriction as may be specified
therein with respect to the preparation of
plans for economic development and
social justice; implementation of schemes
for economic development and social
justice as may be entrusted to them
including those in relation to the matters
listed in the Eleventh Schedule. The
3All] Manbodh Kumar Lal and others V. State of U.P. and others
230

impugned enactment namely the U.P.
Panchayat Raj (Amendment) Act, 1999 is
well within the legislative competence of
State Legislature. Section 25 and 25A and
are intended to achieve the objective
enshrined in Articles 40 and 243 G of the
Constitution. Transfer of Government
Department to the Gram Panchayat vide
G. O. dated July 1, 1999, cannot be
demurred to.

7. It is a matter of policy decision of
the State Government as to what kinds of
governmental
functions
are
to
be
transferred to Pachayats. The decision
taken by the Government under Clause (a)
of Section 25(I) would not be open to
judicial review by this court so long as it
is in consonance with clause (b) of Subsection (1) of Sec. 25 of the Act and Art.
243G of the Constitution.

8. The question remains whether
clauses (a) and (b) of sub-section (1) of
Sec. 25 of the U.P. Panchayat Raj Act,
1947 as substituted by U.P. Act 27 of
1999, infringe upon Articles 14, 16 and
311 of the Constitution of India. The
bottomline argument advanced by Sri
Dinesh Dwivedi is that the transfer of a
Government employee to serve under
Gram Panchayat with full supervision and
control of the Gram Panchayat is fraught
with the consequence of a transfer from
one service to another service and such
transfer, proceeds the submission, is
discountenanced as impermissible.

9. It brooks no dispute that such
employees on being so transferred and
posted in as Gram Panchayat shall serve
under the supervision and control of the
Gram Panchayat subject to the same terms
and conditions and same rights and
privileges as to retirement benefits and
other matters relating to promotion as
would have been available and accrued to
them immediately before such transfers
and shall perform such duties as may be
specified from time to time by the State
Government.

10. The Submission made by the
learned
counsel
that
the
transfer
visualised under clause (a) of sub-section
(1) of Section 25 is violative of Articles
14, 16 and 311 of the Constitution, cannot
be countenanced in approval inasmuch as
it has been very clearly provided in
section 25(1) (b) of the Act that the
service conditions of the Transferee
employees of the concerned department
will continue to be the same and they will
continue to be the Government employees
and governed by the same service
conditions which were applicable to them
prior to transfer of the departments to the
Gram Panchayats.

11. The decision in State of
Gujarat V. Ramanlal Keshavlal Soni1,
reliance on which was placed by Sri
Dinesh Dwivedi cannot be taken aid of as
the ratio decidendi of that case flows from
different perspective. In that case, Gujarat
Panchayat Third Amendment Act 1978
was
declared
unconstitutional
as
it
offended Articles 311 and 14 of the
Constitution inasmuch as a result of the
Amendments,
certain
Government
servants
therein,
ceased
to
be
the
Government servants with retrospective
effect
and
their
allocation
to
the
Panchayat Service was cancelled and they
were made servants of Gram and Nagar
Panchayats with retrospective effect and
they were treated differently from those
working Taluka and district Panchayats

1 (1993) 2 SCC 33
231 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
and under the amended provisions, their
service conditions were to be prescribed
by Panchayats by resolution whereas the
condition of service of others were to be
prescribed by the Government. Their
promotional prospects were completely
wiped out and all advantages which they
could derive as a result of judgment of the
Court in their favour were taken away and
it was under these circumstances, that the
Supreme Court held that their status as a
Government
servant
would
not
be
extinguished so long as the posts were not
abolished and their services were not
terminated
in
accordance
with
the
provisions of Art. 311 of the Constitution
nor was it permissible to single them out
for differential treatment in violation of
Art. 14 of the Consti. In the present case,
it would be evident from clause (b) of
sub-section (1) of section 25 of the Act
that the service condition of the existing
Govt. employees of the Departments
transferred to Gram Panchayats have not
at all been altered as it is very clearly
provided in clause (b) of Sub-section (1)
of Sec. 25 that they would continue to be
governed and the same set of rules as
Government servants would, pro tanto,
apply to them as were applicable to them
on the date of devolution of power. In
such view of the matter, we find no
infirmity in the view taken by the learned
Single Judge dismissing the writ petition
nor do we find any substance in the writ
petition filed by and on behalf of Gram
Panchayat
Adhikari
challenging
the
validity of the amended sections 25 and
25 A of the U.P. Panchayat Raj Act, 1947
and the G.O. dated 1.7.99.
Accordingly, the appeals and the writ
petition aforestated fail and are dismissed.
We make no order as to costs.
Appeal Dismissed.

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