2005 Supreme(Raj) 25

Rajasthan High Court
Honble N.N. MATHUR & N.K. JAIN, JJ.
Richhpal Singh & Ors. - Appellant
Versus
State of Rajasthan - Respondents
D.B. Civil Writ Petition No. 3654 of 2004
Decided On : January 04, 2005

Headnote:(a) Rajasthan Panchayati Raj (Amendment) Ordinance, 2004, Sec. 89 (6-A), 89 (7-Proviso) and Constitution of India, Art. 315(1), 320 & 321 & 243(d) – Amendment challenged on the ground that panchayat is a Self-Govt. i.e. outside the scope of Art. 321 and for that State has no legislative competence – Recruitment of Primary School Teacher or Gr. III teachers – Change of mode of selection from District Establishment Committee to R.P.S.C. – Held – Panchayats are creations of legislature, the basic provisions contained in part-ix of Constitution are to be supplemented by law made by legislature – Panchayats have not acquired the status of one of the form of Govt. at par with the Union Govt. and the State Govt. – The use of words ``Self Govt. has not made any substantial change with the words. ``Local Self Govt.. (Paras 21 to 29 & 101)(b) Rajasthan Panchayati Raj Act, 1994, as Amended – Recruitment of Primary School Teacher Gr. III in Panchayat by R.P.S.C. – Held – By change of manner of recruitment from District Establishment Committee to R.P.S.C., the autonomy of Panchayat is not affected as power of appointment is still remain with panchayat. (Paras 44 to 46)(c) Service Matters – Regularisation of para teachers – The principle evolved for absorbing irregular appointees is termed as regularisation – Held – There is no vested right of regularisation – Regular recruitment should be made in regular manner. (Paras 80 to 81)(d) Rajasthan Panchayati Raj Rules, 1996, Rule 259 – Para teachers – Method of recruitment – Held – Petitioners were engaged under a particular scheme on the fixed honorarium without following the statutory process of selection – Cannot be given the regular pay scale of Gr. III teachers. (Para 94)

       The underlying idea of Seventy-third Amendment in the Constitution by inserting Part IX may be to make Panchayats as vibrant units of Self-Government and local administration in the rural areas to strengthen the democratic institutions at the grass-root level. However, it is entirely dependent on the State Legislature. It further appears that the State Legislature has been reluctant to transfer real powers and have retained with them, or with their officials the powers of supervision, control, suspension, notification of functions, approvals of schemes and the like. Thus, it is incorrect to think that by use of expression ``Self-Government under Article 243(d), the Panchayati Raj has acquired the status as a sovereign body having both Constitutional and Statutory status at par with the Union or the State Government. In fact, the Indian Constitution clearly establishes the dual polity, a two-tier Government System with the Central Government at one level and the State Government at the other. Thus, we are of the view that the tall stand taken by the petitioners that the Panchayats have acquired the status of one of the form of Government at part with the Union Government and the State Government, cannot be accepted. The use of words ``Self- Government has not made any substantial change with the words ``Local Self-Government. It can only be said that the Constitutional amendments have set the tone & spirit and provide a springboard for action. (Para 29)

       Under the unamended provisions, the selection on the post of Primary School Teacher was to be made by the District Establishment Committee but now the same has been transferred to the R.P.S.C. As per the scheme of the Act, there is no change in the appointing authority. The power of appointment on the post of Primary School Teacher including the power to create posts, determine vacancies and give appointment is vested with the Panchayat. However, difference made is that under the unamended provisions, every District Establishment Committee was having their own procedure but now the same has been entrusted to the Constitutional body like R.P.S.C. The Commission shall conduct the examination and send the merit list to the respective Panchayats. The appointments are to be made as per the preference given by the candidates in the respective Panchayats. (Para 45)

       Under certain circumstances where not to continue a temporary or ad hoc appointment can be termed as arbitrary or unreasonable, the principle evolved for absorbing of such irregular appointees is termed as regularization. In a given case where incumbents, who have been initially appointed irregularly but within the province of the competence of appointing authority and have continued for long, discharged duties required by the employer, services may be regularized after framing a proper scheme of absorption, in terms of law laid down by Supreme Court. However, it must be borne in mind that there is no inherent or vested right of regularization, as the normal rule is that regular recruitment should be made in the regular manner. This, while giving such direction, the Court must act with due care and caution. It must ascertain the relevant facts and must be cognizant of several situations and eventualities that may arise on account of such directions, including judicial restraint not to unduly over burden the State exchequer, which the State may not be able to stand. Regularization in the name of sympathetic approach cannot be one sided overlooking the other side i.e., unsympathetic to large number of eligible persons waiting for long time in queue seeking employment and encouraging back door entry, breach of statutory provisions at the cost of merit in service. (Para 80)

       The petitioners were engaged under a particular scheme i.e., Rajiv Gandhi Swaran Jayanti Pathshala on the fixed honorarium without following the statutory process of selection. As such they cannot be given the regular pay scale of Gr.III teachers by regularizing their services. We are told that the Rajasthan Public service Commission has already conducted the examination for recruitment on the post of Primary School Gr.III Teachers in rural areas. About more than lakh of candidates have appeared in the examination against approximately 33000 vacancies. (Para 94)