An executive officer of a panchayat is not a member of a Civil Service of a State or holding a civil post under the State within the meaning of Article 311 of the Constitution.

( 1 ) THIS petition under Article 226 of the Constitution is directed against the discharge of the petitioner from service.

( 2 ) THE petitioner was appointed an Executive Officer (Grade III) of the Pamidi Panchayat on 5/06/1952. While he was working as the Executive Officer of Penukonda Panchayat, it was discovered that he committed several irregularities in the discharge of his duties and also misappropriated funds, falsified accounts and manipulated the records. Pending further action against him, he was suspended. On 17/02/1954, charges were framed and served on the petitioner and he was called upon to explain. The petitioner in reply stated that, due to in experience, he committed the irregularities pointed out and prayed that he might be condoned and continued in service. On a consideration of the explanation offered by the petitioner, the Inspector- General of Local Boards discharged him from service on 21/06/1955. It is to quash this order that the jurisdiction of this court under Article 226 of the Constitution is invoked.

( 3 ) THE main ground of attack against the order is that the petitioner was not afforded the second opportunity as contemplated by Article 311 (2) of the Constitution. The question for consideration is whether the petitioner is one who is entitled to the benefits of Article 311. Article 311 guarantees against a member of a Civil Service of the Union or an All India Service or a Civil Service of a State from being dismissed or removed by an authority subordinate to that by which he was appointed and also without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, if it was proposed to dismiss or remove or reduce in rank. The problem to be solved is whether an executive officer of a panchayat is a member of a Civil Service of a State" falling within the purview of Article 311.

( 4 ) IT is urged by Sri Dhanurbhanudu that an executive officer should be regarded as a holder of civil post for the reason that he was appointed by the Government and that rules were framed by the Government governing the conditions of his service. If a person is appointed to any post by the Government, it follows that he holds a civil post, contends Sri Dhanurbhanudu. We do not think we can give effect to this contention. It is not the factotum of appointment by an agency that determines the character of the post that one holds. Though the petitioners appointment was made by the Government, still he was in the employ of the Municipality. It is to be noted that the salary and allowances of the executive officer of a Panchayat Board should be paid by the Panchayat Board out of its funds. His salary and allowances are not charged on the funds of the Government. That an Executive Officer of a Panchayat does not hold a civil post is clear from Section 28 (5) of the Madras Village Panchayats Act, 1950 (Madras Act X of 1950 ). This section points out the difference between persons who were appointed for the first time as Executive Officers and those who were in the service of Government and transferred as Executive Officers.

( 5 ) SECTION 28 (5) of the aforesaid Act is in these terms:-- (5) The Panchayat shall also make -- (a) if the executive officer is in the service of the Government such contribution towards his leave allowances, pension and provident fund as may be required by the conditions of his service under the Government to be made by him or on his behalf; (b) if the executive officer is not in the service of the Government such contribution towards his leave allowances, pension and provident fund as may be prescribed in this behalf. Thus, every executive officer is not regarded as "a member of a civil service of a State" merely because he was appointed by the Government. He is only a servant of the Panchayat Board. Under Section 30 of the Village Panchayats Act, the executive officer has to work under the Panchayat Board and carry into effect