,RAM SARUP v. -STATE OF BARY ANA & ORS.

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 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.