Holding

The Court held that the employees were on deputation, retaining lien with their parent departments, and therefore the State could lawfully repatriate them, rendering the High Court's order setting aside the repatriation unsustainable.

Summary

The Supreme Court examined the status of employees transferred from State departments to Gram Panchayats under the amended U.P. Panchayat Raj Act, 1947. It held that the transfer under Section 25 was a deputation, not a permanent transfer, and that the employees retained a lien with their parent departments. Consequently, the State could lawfully repatriate the tube‑well operators and part‑time operators back to the Irrigation Department. The Court also ruled that the 73rd Constitutional Amendment is not a basic feature of the Constitution and that tube‑wells do not qualify as "public property" under Section 34. It set aside the High Court’s order that had quashed the repatriation and restored the Government Orders effecting the return of the employees, while emphasizing the doctrine of judicial discipline and natural justice.

Issues considered

The nature of the transfer of employees under Section 25 of the U.P. Panchayat Raj Act – whether it constitutes deputation or permanent transfer.
Whether the State Government has the authority to repatriate deputed employees back to their parent departments.
Whether the High Court erred in setting aside the repatriation order without giving the affected employees a chance to be heard, violating natural justice.
Whether the Constitution (Seventy‑third Amendment) Act, 1992 is a basic feature of the Constitution and thus immune from amendment.
Whether tube‑wells vested in Gram Panchayats under Section 34 are public property, precluding their transfer back to the Irrigation Department.
Whether part‑time tube‑well operators can be treated as permanent employees of the Gram Panchayat cadre.
The applicability of the doctrine of judicial discipline and the binding effect of prior High Court decisions.

Legislation cited

Constitution of Indias. Article 243G, s. Article 368, s. Article 37, s. Article 40
Constitution (Seventy‑third) Amendment Act, 1992
U.P. Panchayat Raj Act, 1947s. Section 25, s. Section 25A, s. Section 2(mm), s. Section 34

Subjects

deputationtransfer of government employeesPanchayat Raj73rd Constitutional Amendmentbasic structure doctrinenatural justicejudicial disciplinepublic propertyservice rulesrepatriationSection 25Section 34U.P. Panchayat Raj Act

Judgment

U.P. GRAM PANCHA YAT ADHIKARI SANGH AND ORS. A
v.
DAY A RAM SAROJ AND ORS.

DECEMBER l l, 2006

[H.K. SEMA AND P.K. BALASUBRAMANYAN, JJ.] B

Constitution ofIndia-Articles 37, 40 and 243G-Constitution (Seventy-
third Amendment) Act, 1992-UP. Panchayat Raj Act, 1947-Sections 2(mm),
25, 25A & 34-,-Transfer of employees from State Departments to Gram C
Panchayats after amendemtn to State Act,-High Court dismissing Writ
Petitions challenging the transfer holding that the employees are transferred
only on deputation and that their services continue to remain with Parent
Departments-State later ordered repartriation of some employees to their
Parent Departments-Writ Petitions challenging repatriations were dismissed
by High Court holding the earlier view-High Court, in another repatriation D
proceeding, held a contrary view Correctness of-Held, the principles of
natural justice not followed by High Court before setting aside order of
repatriation~Constitution (SeventY-third Amendment) Act, 1992 is not a
basic feature of the Constitution and hence the amendment to the State Act
does not violate basic structure of the Constitution-Employees are sent on E
deputation to Gram Panchayat and they continue to have lien with patent
Departments under the State Act- Hence, order of repatriation upheld

State Government brought an amendment to U.P. Panchayat Raj Act,
194.7 with new sections 25 and 25-A and transferred employees from some
State Departments to Gram Panchayats (GPs) and re-designated them as Gram p
Panchayat Evam Vikas Adhikaris (GPVAs). Writ Petitions fi!ed before High
Court challenging the amendment to the Act and !_he subsequent transfers
were dismissed. The High Court held that the employees continue to remain
with their Parent Departments and are governed by their original service
Rules; and that they are only on deputation to GPs.
G
The State Government later ordered repatriation of some of the
employees back to the Parent Departments. Writ Petition challenging the
repatriation before the High Court was dismissed on the same view as held
earlier. A Special Leave Petition filed before this Court was also dismissed.

581 H
582 SUPREME COURT REPORTS (2006] SUPP. IO S.C.R.

A The State, thereafter, ordered repatriation of tube-well operators and
part-time tube-well operators to theirs Parent Departments. Writ Petitions
were filed before the High Court challenging this repatriation also. The High
Court allowed the Writ Petitions and set aside the order of repartraion on
the ground that the facts are different in here. The High Court, further, held
B that the tube-well operators and part-time tube-well operators are inextricably
connected with the cadre of GVPAs; and that the part-time tube-well operators
shall be treated as permanent employees.

In appeal to this Court, the appellants, who supported repatriation to
their Parent Department, contended that they were not parties before the High
C Court and hence the High Court has erred in setting aside the order of
repatriation without following the principles of natural justice.

The respondents-writ-petitioners, who opposed repatriation, contended
that they were transferred as a consequence of transfer of Governmental
functions to GPs by law as part of the Constitutional Scheme of devolution of
D powers as a permanent measure in order to enable them to function as units
of self-government; that such devolution of powers by law is irreversible which
cannot by undone either directly or indirectly by the Executive; that their
transfer from Parent Department to the Gps was lock; stock and barrel and
therefore; it is a complete and permanent transfer; that under section 34 of
the Act; the property viz. the tube-wells were vested in the Gps and hence
E their transfer back to parent Department is impermissible; that they were
not transferred on deputation; that reading sections 25 (a) and 25 (6) of the
Act conjunctively; the State is empowered to transfer an employee only from
one District/Panchayat to another District/ Panchayat and hence is
incompetent to transfer them back to the parent Department.
F Disposing the appeals, the Court

HELD: 1. Judicial discipline is self-discipline. It is an inbuilt mechanism
in the system itself. Judicial discipline demands that when the decision of a
co-ordinate Bench of the same High Court is brought to the notice of the
G Bench, it is respected and is binding, subject to the right to take a different
view or to doubt the correctness of the decision and the permissible course
then often is to refer the question or the case to a larger Bench. This is the
minimum discipline and decorum to be maintained by judicial fraternity.
[593-H; 594-A]

H Kalyan Chandra Sarkar v. Rajesh Ranjan and Pappu Yadav and Anr.,
U.P.GRAMPANCHA YAT ADHIKARISANGHv. DAYARAMSAROJ 583
(20051 2 sec 42, referred to. A
2.The High Court set aside the order of repatriation adversely affecting
the appellants without their being brought on record as party respondents.
They were neither a party before the Single Bench nor before the Division
Bench. (594-HI
B
Ishwar Singh Ajqi Kumar and Ors. v. Ku/deep Singh and Ors., (19951
Supp. 1 SCC 179; B. Ramanjini and Ors. v. State of U.P. and Ors., (20021 5
SCC 533 and Bhagwanti v. Subordinate Services Selection Board (19951
Supp. 2 SCC 663, referred to.

3. The decision of the High Court that the tube-well operators can C
legitimately expect to remain as multi-purpose Gram Panchayat employees
unless the whole concept is totally done away with, is unsustainable. There is
no pleading in the original petition about the legitimate expectation. (596-Cl

National Building Construction Corporation v. S. Raghunathan and D
Ors., (199817 SCC 66, referred to.

4. The direction of the High Court to treat the part-time tube-well
Operators as permanent employees under the same service conditions as the
tube-well Operators runs in the teeth and the guidelines of the Constitution
Bench Judgment of the Court. (596-El E
Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors., (20061
4 SCC 1 CB, referred to.

1.5. The Constitution (Seventy-third Amendment) Act, 1992 was brought
into force to give effect to one of the Directive Principles of State Policy, F
namely, Article 40 of the Constitution. Therefore, it cannot be said that the
Amendment of the Constitution is the basic feature of the Constitution. Article
40 cannot be said to qualify as the basic feature of the Constitution. The
Amendment came to the Constitution by way of amendment under Article 368
and, therefore, it cannot be said to be a basic feature of the Constitution. It is
an enabling provision and the State is empowered either to eliminate, modify G
or cancel by exercising power under the enabling provision. Article 243G of
the Constitution is an enabling provision. The enabling provisions are subject
to the conditions as may be specified. Therefore, it is for the State Legislature
to consider legal conditions and make the law accordingly. The devolution of
exercise would also be open to the State to eliminate or modify. [597-B-EI
H
A
584 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

M Nagaraj and Ors. v. Union of India and Ors., (2006) 8 SCC 212;
-
Akhil Bharat Goseva sangh (3) v. State of A.P. and Ors., (2006) 4 SCC 162
and Ku/dip Nayar and Ors. v. Union of India and Ors., (20061 7 SCC l,
referred to.

1.6. The contention of the respondents that their transfer from
B Irrigation Department to the Gram Panchayat was lock, stock and barrel and
that there was a complete and permanent transfer is factually incorrect and
misplaced. The facts clearly show that they had a lien 'with the Parent
Department and they had gone back to the Parent Department. (598-B-C)

State of Mysore v. R.S. Kasi, (1985) 2 SCC 110; S.K. Saha v. Prem
C Prakash Agarwal, (1994) l SCC 431; Bhim Singh v. State ofHaryana, (1981)
2 SCC 673; Jawaharlal Nehru University v. Dr. K. S. Jawatkar, (1989) Supp.
l SCC 679; Commissioner of Police v. Gordhandas Bhanji, (1952) SCR 135;
Comptroller and Auditor General of India v. K.S. Jagannathan, (1986) 2 SCC
679 and Terioat Estates (P) Ltd v. UT. Chandigarh, [2004) 2 SCC 130,
D referred to.

1.7. Vesting of the property in the Gram Panchayat employed in Section
34 of the U.P. Panchayat Raj Act, 1947 would mean the property vested for
the purpose of management and control. The property so vested is not fastened
to the Panchayat and remains as its property. Public .property, as defined under
E the Act, refers to public building, park or garden or other .place to which the
public have or are permitted to have free access. A tube-well is handled by a
technician - an expert hand. General public does not have free access to the
tube-well. They can only have free access to the water drawn from the tube-
well. Therefore, tube-well does not fall within the scope of public property
F referred to in Section 34 of the Act. (599-D-G)

1.8. From reading the provisions contained in Section 25 of the Act,
the expression "Supervision and Control of the Gram Panchayat" only means
to the extent of transfer of supervision to the Gram Panchayat. The expression
"shall serve under the supervision and control of the Gram Panchayat" would
G only mean supervisory powers and control of the Gram Panchayat. The overall
control of the employee was still with the Government when Section 25(1) (b)
of the Act unequivocally provides that they shall perform _such duties as may
be specified form time to time by the State Government . This would clearly
show that they were working under the supervisory control of Gram Panchayat
keeping lien with the Parent Department. It is clear that they were sent on
H
U.P.GRAMPANCHAYATADHIKARISANGHv. DAYARAMSAROJ 585

deputation. Section 25 (1) (b) was clearly intended to safeguard the service A
conditions of the employees worl<ing under Gram Panchayats.1602-C, D, El

1.9. By reading Section 25 of the Act as a whole and understanding the
language employed therein, it is clear that the employees of various
Departments were sent to Gram-Panchayats on deputation. They kept their
lien in their respective Departments. This is also true to their own knowledge B
when they were sent to Gram Panchayats. This is also the reason why even a
section of tube-well operators would like to go back to the Parent Department,
who are equally aggrieved. They were sent to Gram Panchayats purely
temporarily and on deputation till the Gram Panchayats themselves make
· . appointments is also clear from the language employed in Section 25(2) of C
the Act. The expression "Transfer" employed in Section 25 of the Act is a
l. misnomer. 1603-D-E, E, Bl

Kuna/ Nanda v. Union of India and Anr., 120051 5 SCC362, referred
to.
D
1.10. Section 25 (6) of the Act does not take away the general power of
transfer as it is understood in the language used. What is intended by Section
25 (1) (b) is that apart from the general power of transfer as visualized in
Section 25 (1) (a), the State Government will also be empowered to transfer
the employee from one District to another District so long as he remains
under the control of Panchayat Section 25 (6), therefore, does not take away E
the general power of the Government of transfer/repatriation of the
respondents from Gram Panchayats to the Parent Departments. [604-D-E)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1895 of2006.

From the final Judgment and Order dated 8;2.2006 of the High Court of F
Judicature at Allahabad in S.A. No. 1009/2005.

WITH

C.A. Nos. 1896-1902, 3455, 352312006, 8302-8313, 8314-8315, 8316, 8317-
8319/2004, 680, 1083, 1084, 2920/2005, 6090/2001 and C.P. (C)Nos. l 14, 141, G
2006.

Sunil Gupta, Rakesh Dwivedi, Ravindra Srivastava, N.C. Jain, Jawahar
Lal Gupta, Dr. Rajeev Dhawan, Raju Ramachandran, Rajeev Dubey, Vivek
Vishnoi, T. Mahipal, Kavin Gulati, Rashmi, Vibhakar Mishra, Kamal Pandey,
H
586 SUPREME COURT .REPORTS (2006] SUPP. 10 S.C.R.

A K.L. Janjani, Ejaz Maqbool, Taruna Singh, Jeevan Prakash, Vishv~ndra Venna,
Ambhoj Kumar Sinha, Kamlendra Mishra, S. W.A. Qadri, Manoj Mishra, Gaurav
Bhatia, Adarsh Upadhayay, Fuzail Khan, Kunal Venna, M. Manna'l, Arjun
Garg, Raju! Shrivastava, Mahalakshmi Pavani, G. Balaji (for Mis. Mahalakshmi
Balaji & Co.), Amit Pawan, T.N. Rao, E.C. Agrawal, Mahesh Agrawal, Subhash
B Chandra Birla, Subrat Birla, Lalita Kaushik, Sanjay Jain, Mukesh Kumar, Vinay
Arora, Manita Venna, S.K. Sinha, Sunil Kumar Jain, V.A. Syed Muhammad,
Subramonium Prasad, Raghavendra S. Srivatsa, R. Gopalkrishnan, Jai Kishor
Singh, Karun Mehta, Shail Kumar Dwivedi, G.V. Rao, Sunil Singh, Mukti
Singh, Dr.Kailash Chand, T.T.K Deepak & Co., Praveen Swarup, Pramod,
Dayal and T.V. George for the appearing parties.
c The Judgment of the Court was delivered by

H.K. SEMA, .J. The Constitution (Seventy-third Amendment) Act, 1992
came into force on 24.4.1993. The said amendment was brought into force
to give effect to one of the Directive Principles of State Policy - Article 40
D of the Constitution of India, which directs the State to organise village
panchayats as units of self-government. Article 40 reads as under:

"Organisation of village panchayats. The State shall take steps to
organize village panchayats and endow them with such powers" and
authority as may be necessary to enable them to function as units of
E self-government."

PART JV of the Constitution deals with 'Directive Principles of State
Policy'. Article 37 provides that the provisions contained in this Part shall
not be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the
F duty of the State to apply these principles in making laws.

By 73rd Constitutional Amendment Article 243G was introduced in the
Constitution of India. Article 243G reads as under:-

"243G. Powers, authority and responsibility of Panchayat. Subject
G to the provisions of this 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 self-
government and such law may contain provisions for the devolution
of powers and responsibilities upon Panchayats, at the appropriate
H level, subject to such conditions as may be specified therein, with
U. P. GRAMPANCHA VAT ADHIKARI SANGHv. DAYA RAM SAROJ[H.K. SEMA,J.] 587

respect to A
(a) 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 B
relation to the matters listed in the Eleventh Schedule."

Article 243G, thus, endows the Panchyats with such power and authority
as may be necessary to enable them to function as institutions of self
government. Such law may contain provisions for the devolution of powers
and responsibilities upon Panchayats, subject to conditions as may be C
specified, with respect to 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 of the Constitution.

To implement the 73rd Constitution Amendment, the Uttar Pradesh
Panchayat Raj Act 1947 (U.P. Act No. 26of1947) (hereinafter 'the Act') was D
amended and various Government Orders were passed. We shall advert to
the amendment and orders passed thereunder at an appropriate time.

We have heard S/Sh. Sunil Gupta, P.N. Mishra, Ashok H. Desai, Rakesh
Dwivedi, N.C. Jain, Jawahar Lal Gupta, L. Nageshwar Rao, M.N. Rao, P.P. Rao, E
A.K. Ganguli, Arun Jaitley, Mathai M. Paikdey Dr. Rajiv Dhawan, Raju
Ramachandran, S.K. Kalia, Ravindra Srivastava, learned Senior advocates
appearing for various appellants/respondents. We have also heard other
learned counsel appearing for different parties.

FACTS F
The facts in these appeals have a chequered history, which we may
recite briefly. By Government Orders (GOs) dated 12.4.1999, 29.4.1999, 5.5.1999
and 27.5.1999 the services of the employees of eight Departments were
transferred to the Gram Panchayats. The employees, so transferred, were to
se..Ve the Gram Panchayats (GPs) as multi-purpose workers or Gram Panchayat G
Evam Vikas Adhikaris (GPVAs). The aforesaid orders were challenged by
filing Writ Petitions on the grounds of (i) arbitrariness and (ii) (executive)
interference with the statutory rights of Government employees under Service
Rules made under Article 309 of the Constitution. The basic grievance raised
was that whereas in the Parent Department, they were governed by respective H
Service. Rules framed under Article 309 of the Constitution, they were being
588 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A transferred to Gram Panchayats where there were no Service Rules governing
the service conditions and their services became insecure.

On the aforesaid premise, the Govt. by an order dated 27 .6.1999 brought
up an Ordinance followed by Amendment Act (U.P. Act No. 27 of 1999).
Sections 25 and 25-A of the U.P. Panchayat Raj Act 1947 were substituted
B by new Sections 25 and 25-A. Thereafter, by G.O. dated 30.6.1999, the G.Os.
Dated 12.4.1999 and 29.4.1999 were revoked. On l.7.1999, a G.O. was issued
transferring the services of 55,548 employees from eight Departments, including
Tube-well Operators (TOs), from Irrigation Department to the Gram Panchayats
for providing Multi-ptlrpose workers to the Gram Panchayats and by G.O.
C dated 26.7.1999 they were re-designated as Gram Panchayat Vikas Adhikaris
(GPVAs). They were put under the control of the Gram Panchayats while
discharging the functions of their respective Departments.

Aggrieved thereby, several Writ Petitions, including Writ Petition No.
33929 of 1999 were filed challenging the constitutional validity of new Section
D 25 and Section 25A and the G .0. dated 1. 7.1999. The High Court, after hearing
the parties, upheld the validity of the Section and G.O. dated I. 7.1999 and held
that such employees, transferred as GPVAs, continue to remain Government
Servants and to be governed by the original and respective Service Rules. It
was held they are on deputation to Gram Panchyayats.
E
By G.O. dated 6.6.2001, 10,102 employees of two Departments, viz.
Irrigation (Seelichpal Canal Div.-4782 employees) and Health (Male Health
Workers - 5320 employees) were repatriated to their Parent Departments.
Similarly, on 21.9.2001, 479 employees of Land Development and Water
Resources Departmeru were also repatriated/called back.
F
The aforesaid Govt. Orders were challenged by one Krishna Kant Tewari
by filing a Writ Petition in the High Court. The learned Single Judge by his
order dated 8.1.2002 dismissed the Writ Petition and upheld the G.Os. dated
6.6.2001 and 21.9.2001. It was held inter-alia that their original cadres were
G not dead; they continued in their original cadres; they had been sent only
on deputation to the GPs; they were merely re-designated as GPV As; they had
never been absorbed into any new cadre of GPV As and they could always
be repatriated to their original cadres.

Aggrieved by the order of the learned Single Judge, an appeal was
H preferred before the Division ·aench being Special Appeal No. 94 of 2002,
which was dismissed by the Division Bench on 28.1.2002.
U. P. GRAM PANCHA YAT ADHIKARI SANGH v. DAYA RAM SAROJ [H.K. SEMA,J.] 589

Against the order of the Division Bench, a Special Leave Petition (C) A
No. 7842 of 2002 was preferred before this Court, which was dismissed by a
three Judge Bench of this Court on 26.4.2002, in which one of us (Serna, J.)
was a party.

Legally speaking, the whole controversy about the status of transferred
employees as to whether their service conditions were well protected under B
the Rules governing them in the Parent Department and whether they were
permanently transferred to GPV As or on deputation has been set at rest and
it has become final.

Thereafter, a G.O. dated 20.7.2004 was again issued for repatriation of C
the employees of three Departments, viz. Agriculture (5322 employees), Cane
Development (2593 employees) and Rural Development (6906 employees)
[totaling 14821 employees] to their Parent Departments. A Writ Petition was
filed by Gauri Shanker challenging the G.O. dated 20.7.2004, which was
dismissed by the learned Single Judge on 6.8.2004. Special Appeal against
the order of the learned Single Judge Bench was dismissed by the Division D
Bench on 25.8.2004 holding that the transferred employees remained
Government Servants and retained their lien on the posts in their original
Departments and they could always be repatriated. Several similar Writ
Petitions were also filed by Subhash Chandra Pande, Braj Kishore, Lal Sahab
Singh, Gram Vikas Adhikari Sangh etc. challenging the G.O. dated 20.7.2004, E
which were dismissed on 20.8.2004, 15.9.2004, 18.9.2004 and 5.11.2004
respectively.

The present controversy arises from the G.O. dated 19.7.2005 issued to
re-transfer all Tube-well Operators and repatriate the Tube-well Operators as
well as part-time Tube-well operators of Irrigation Department to their Parent F
Departments under the control of the Parent Departments. The Order reads:

''No.3334/05-27-1-5-31-TW/2005

From,
Smt. Neera Yadav, G
Chief Secretary, Uttar Pradesh Shasan,
To,
1. All Divisional Commissioner, U.P.
2. All District Magistrate, U.P.
Irrigation Section-5 Lucknow Dated 19th July, 2005 H
590 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Sub: Regarding transfer of all Tube. Well-Operators/ Part time Tube
Well Operators back to Irrigation Department for proper operation and
maintenance of state Tube Well who had been transferred to Gram
Panchayat.

Dear Sir,
B
In reference to the above subject the Government has taken following
decisions with immediate effect for proper operation and maintenance
of state Tube Wells transferred to Gram Panchayats:-

(l) All State Tube Wells alongwith their assets may again be
c transferred to Irrigation Department from Gram Panchayats.
(2) Tube Well Operators/ Part time Tubewell Operators of Irrigation
Department, who were transferred as multipurpose employees
along with tubewells on the post of Gram Panchayats Development
Officer under the control of Gram Panchayats, may be again
D transferred alongwith tube-wells back to their substantive posts
of tubewell operators/ part time tube~well operators and under
the control of Irrigation Departments. To maintain the control of
Gram Panchayats also on these employees their monthly
attendance be sent to the concerning officer of the tubewell
section by the Chairman of Water Management Committee.
E
(3) Right of water distribution. and management oftubewell be given
to Water Management Committee constituted for tubewell but in
case of any dispute the decision of Executive Engineer, tubewell
section shall be final.

F (4) Entry of daily irrigation/delivery of water, daily filing of jamabandi
register and distribution of irrigation fees along with equipments
of tubewells, water management system, previous record list,
pump efficiency chart, tube-well repair register and inspection
register etc. shall be maintained and entries therein shall be made
by the Tubewell operator-Part time tubewell operator, Tubewell
G mechanic/ Junior Engineer (Tubewell) as done before.
(5) Maintenance expenditure of tubewell and income expenditure
provision for establishment of tubewell operators/part time
tubewell operator and electrical energy may be made from the
grants of irrigation department as before.
H

'1
U. P. GRAM PANCHA YAT ADHIKARI SANGH v. DAYA RAM SAROJ [H.K. SEMA, J.] 591

It is requested to ensure compliance of aforesaid decision on priority A
basis.
Yours,
Sd/-
(Neera Yadav)
Chief Secretary" B
The aforesaid G.O. was challenged before the learned Single Judge by
filing Civil Misc. Writ Petition No. 53127 of2005. In the Writ Petition, inter-
alia, the contentions raised in paragraphs 13 and 15 are as under:

"13. That vide Government Order/Notification dated 20.07.2004 a new
cadre was created, which comprised of employees of three Departments C
i.e. Gram Panchayat Adhikari, Gram Vikas Adhikari (Social Welfare)
.... and regular Tube-well Operators. After creation of new cadre, the
petitioners ceased to be employees of Irrigation Department and their
earlier post of Tube-well Operator stood abolished. The petitioner
became Gram Panchayat Vikas Adhikari and they were posted in D
different Gram Panchayats to work as Gram Panchayat Vikas Adhikari.

15. That, from perusal of impugned circular dated 19.07.2005 it is
obvious that while issuing circular dated 19.07.2005 the Chief Secretary
to the Government of U.P. did not look at the earlier Government
Order/Notification dated 20.07.2004 which was a decision taken by His E
Excellency, the Governor of U.P. by which a new cadre of Gram
Panchayat Vikas Adhikari was created. The Chief Secretary totally
ignoring the Government Order dated 20.07.2004 and provisions made
therein which have statutory force, issued impugned circular without
even referring or taking note of the Government Order dated 20.07 .2004. F
Thus, the impugned circular is apparently without application of mind
and arbitrary."

The prayers made in the Writ Petition are as under:

(A) "Issue a writ, order or direction in the nature of certiorari, quashing
the impugned circular dated 19. 7.2005, issued by the Chief G
Secretary, Government ofU.P. (Annexure 3 to this writ petition).
(B) Issue a writ, order or direction in the nature of mandamus
commanding the opposite parties not to interfere in the working
of the petitioners as Gram Panchayat Vikas Adhikari and to give
H
592 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A the petitioners all consequential service benefits for which they
are found entitled under law.
(C) Issue any other and further suitable writ, order or direction which
this Hon'ble Court may deem fit and proper in the facts and
circumstances of the case.
B (D) Award the cost of this petition to the petitioners."

A perusal of the Writ Petition, particularly paragraphs 13, 15, 16, 17, 18
and 21 discloses that the contention, raised by the petitioners that by G.O.
dated 20.7.2004, a cadre had been created and after creating a new cadre, the
C writ petitioners cease to be employees of the Irrigation Department and the
earlier posts of Tube-well Operators stood abolished and their order of
repatriation, is bad. A contention has also been raised that the petitioners
could not be treated as on deputation in the Gram Panchayats and they be
treated as simple transferees from Irrigation Department to Gram Panchayat
Department.
D
As already noticed, the G.0. dated 20.7.2004 was questioned in Gauri
Shanker (supra) by employees of three Departments, viz. Agriculture, Cane
Development and Rural Development, which was dismissed by the learned
Single Judge and affirmed by the Division Bench. In the aforesaid decision,
E the High Court was of the view that the transferred employees were actually
on deputation to the Gram Panchayat retaining lien in their Parent Department
and, therefore, the Government is competent to bring them back in their Parent
Department, as and when the necessity arises.

Keeping the aforesaid background in mind, we will now examine the
F merits of the Writ Petition filed by the petitioners/respondents herein
questioning the legality of the G.O. dated 19.7.1999 and the impugned judgment
of the Division Bench of the High Court.

As already noticed, out of the employees of eight Departments sent to
Gram Panchayats as multi-purpose workers, the employees of Five Departments
G had been repatriated by G.Os. 6.6.2001, 21.9.2001and20.7.2004, which were
assailed by filing Writ Petitions. The writ petitions were dismissed by learned
Single Judge, and the orders were affirmed by the Division Bench of the High
Court which had attained finality as far as a co-ordinate Bench of the same
High Court was concerned. Having noticed the aforesaid decision, the learned
H counsel for the petitioners (respondents herein) fairly conceded before the
U. P. GRAM PANCHAYAT ADHIKARI SANGH v. DAYA RAM SAROJ [H.K. SEMA, J.] 593

learned Single Judge and noted by the learned Single Judge as under: A
" .. conceded and stated that the petitioners have a lien with the parent
department and that the petition has not been filed on those grounds
on which this Court had dismissed the earlier petitions."

In fact the earlier judgments of the Co-ordinate Bench were taken note B
of by the Division Bench in its Judgment as under:

"It is to be noted that the repatriated workers of the five departments
did not take their repatriation lying down, those were challenged in
the Courts oflaw; Writ Petitions were filed and in each and every case
those workers have been unsuccessful. We make references to the C
cases of Krishna Kant Tripathi, 2002 (1) 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 of2005 and others. Reference should also be made
to the main case of Gauri Shanker and others Vs. State of U.P. and D
others which is a decision given in Special Appeal No. 1005 of 2004.
The judgment was delivered on the 25th of August, 2004.

In each of these cases, the Court laid down that the repatriated
I workers have never lost their lien on their original posts in the different
Government Departments and, as such their repatriation could not be E
challenged on any ground. It was held that they were doing the work
as Gram Panchayat Vikas Adhikaris no more than as the deputationists.
These decisions are binding decisions on us and we cannot in any
manne~ decide differently on a point of law from the decis~ons given
in these cases, we being also a Division Bench of two Judges.
F
Having noticed as above, the learned Division Bench took a tum and
set at naught the order passed by the Co-ordinate Bench on the ground that
the facts are different.

We do not see any new facts that had arisen to enable the learned
Division Bench to do so. G
JUDICIAL DISCIPLINE

Judicial discipline is self discipline. It is an inbuilt mechanism in the
system itself. Judicial discipline demands that when the decision of a co- H
594 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A ordinate Bench of the same High Court is brought to the notice of the Bench,
it is respected and is binding, subject of course, to the right to take a different
view or to doubt the correctness of the decision and the permissible course
then often is to refer the question or the case to a larger Bench. This is the
minimum discipline and decorum to be maintained by judicial fraternity.

B The doctrine of judicial discipline has been succinctly enunciated by
the three Judge Bench of this Court in Kalyan Chandra Sarkar v. Rajesh
Ranjan@ Pappu Yadav & Anr., [2005] 2 SCC 42 in paragraph 19 SCC as
under:

"The principles of res judicata and such analogous principles although
c are not applicable in a criminal proceeding, still the courts are bound
by the doctrine of judicial discipline having regard to the hierarchical
system prevailing in our country. The findings of a higher court or
a coordinate Bench must receive serious consideration at the hands
of the court entertaining a bail application at a later stage when the
D same had been rejected earlier. In such an event, the courts must give
due weight to the grounds which weighed with the former or higher
court in rejecting the. bail application. Ordinarily, the issues which had
been canvassed earlier would not be permitted to be reagitated on the
same grounds, as the same would lead toa speculation and uncertainty
in the administration of justice and inay lead to forum hunting."
E
We have been taken through the entire impugned judgment of the High
Court. The judgment is full of inconsistencies. The Division Bench of the
High Court held that under Section 25 of the Act, there is no provision for
creation of posts. In the same breadth the High Court also held that paragraph
F 4 of the G.O. dated 20.7.2004 created a new cadre and revived a cadre in the
Panchayat. By the same breadth, the High Court blew hot and cold.

There is yet another reason as to why the impugned decision of the
Division Bench of the High Court is unsustainable. Civil Appeal No. 1900
of2006 was filed by the employees of Social Welfare Department against the
G judgment. They wanted to go back to their Parent Department. Civil Appeal
No. 1901 of2006 was filed by Tube-well Operators against the same judgment.
They also wanted to go back to their Parent Department, namely, Irrigation
Department. By the impugned order, the High Court set aside the order of
repatriation adversely affecting them without their being brought on record
H as party respondents. They were neither a. party before the Single Bench
U.P.GRAMPANCHAYATADHIKARISANGHv. DAYARAMSAROJ[H.K.SEMA,J.] 595

nor before the Division Bench. A
Mr. Ashok H. Desai, leal'ned Senior counsel appearing for the appellants
in C.A. Nos. 1900 and 190 I of 2006 contended that in these cases the High
Court has flouted the settled principles of natural justice by passing an order
adversely affecting the appellants without hearing them.
B
ln Ishwar Singh Ajai Kumar & Ors. v. Ku/deep Singh and Ors., [1995]
Supp I SCC 179, this Court held as under:

"It is not disputed by the learned counsel for the parties that except
Ishwar Singh, no other selected candidate was impleaded before the
High Court. The selection and the appointments have been quashed C
entirely at their back. It is further stated that even lshwar Singh, one
of the selected candidates, who was a party, had not been served and
as such was not heard by the High Court. We are of the view that
the High Court was not justified in hearing the Writ Petition in the
absence of the selected candidates especially when they had already D
been appointed. We, therefore, set aside the judgment of the High
Court dated December 8, 1992 and send the case back for fresh
decision after notice to the parties. The appeals are allowed in the
above terms. No costs."

In B. Ramanjini & Ors. v. State of U.P. & Ors., [2002] 5 SCC 533, this E
Court held in paragraph 19 SCC as under:

"19. Selection process had commenced long back as early as in 1998
and it had been completed. The persons selected were appointed
pursuant to the selections made and had been perfonning their duties.
However, the selected candidates had not been imp leaded as parties F
to the proceedings either in their individual capacity or in any
representative capacity. In that view of the matter, the High Court
ought not to have examined any of the questions raised before it in
the proceedings initiated before it. The writ petition filed by the
respondents concerned ought to have been dismissed which are more G
or less in the nature of a public interest litigation. It is not a case
where those candidates who could not take part in the examination
had not challenged the same nor was any public interest, as such,
really involved in this matter. It is only in the process of selection
and standardization of pass marks that some relaxation had been
H
596 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A given which was under attack. Therefore, the High Court ought not
to have examined the matter at the instance of the petitioners,
particularly in the absence of the parties before the Court whose
substantial rights to hold office came to be vitally affected."

The same decision was reiterated in Bhagwanti v. Subordinate Services
B Selection Board, [1995] Supp 2 SCC 663.

Another reason why the decision of the High Court is unsustainable
is that the High Court held that the Tube-well Operators can legitimately
expect to remain as multi-purpose Gram Panchayat employees unless the
C whole concept is totally done away with. There is no pleading in the original
petition, not even a whisper, about the legitimate expectation. It appears that
the High Court, at the appellate stage made observations which induced
some of the appellants at the last minute to urge the ground of legitimate
expectation which was pennitted and on the basis of it such finding has been
recorded. Such an approach is not permissible. See National Building
D Construction Corporation v. s. Raghunathan & Ors., [1998] 7 sec 66.

The High Court has also directed that the part-time Tube-well Operators
shall be treated as pennanent employees under the same service conditions
as the Tube-well Operators as far as practicable. This direction runs in the
teeth and the guidelines of the Constitution Bench Judgment in Secretary,
E State of Karnataka & Ors. v. UmaDevi (3) & Ors., [2006] 4 SCC I. In fact,
on this score alone the decision of the Division Bench of the High Court
deserves to be set aside.

We, now proceed to consider the contentions raised by the respective
F parties:

The principle contention which appears to be common is that the Tube-
well Operators were transferred as a consequence of transfer of Governmental
functions inter-alia relating to minor irrigation, water management and water-
- .
shed development etc. as part of the Constitutional Scheme of devolution of
G powers on Gram Panchyats by law as a permanent measure in order to enable
them to function as units of self-government. It is argued that this is one I

of the basic features of the Constitution of India. The transfer of Government
employees engaged in discharging the functions along with the tube-wells
was the necessary consequence of the State Legislature transferring certain
H functions of the Government permanently to the Gram Panchayats to achieve
- U.P.GRAMPANCHAYATADHIKARISANOHv. DAYARAMSAROJ[H.K.SEMA,J.]

the Constitutional goal. A sustained bureaucracy was sought to be created.
597

A
Such devolution of powers by law is irreversible. In any event, it cannot be
undone either directly or indirectly by the Executive which has to function
in accordance with the law, namely the U.P. Panchayat Raj Act, 1947 as
amended in 1994 and again in 1999.

This contention, in our view, is not tenable in law. We have already said B
that the 73rd Amendment was brought into force on 24.4.93 to give effect
to one of the Directive Principles of State Policy, namely, Article 40 of the
Constitution. Therefore, it cannot be said that the 73rd Amendment of the
Constitution is the basic feature of the Constitution. Article 40 cannot be said
to qualify as the basic feature of the Constitution. The 73rd Amendment came C
to the Constitution by way of amendment under Article 368 and, therefore,
it cannot be said to be a basic feature of the Constitution. It is an enabling
provision and the State is empowered either to eliminate, modify or cancel by
exercising power under the enabling provision. Article 243G is an enabling
provision. Article 2430 enables the Panchayats to function as institutions of
self-government and such law may contain provisions for the devolution of D
powers and responsibilities upon Panchayats, subject to such conditions as
may be specified therein, with respect to 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. The enabling
provisions are further subject to the conditions as may be specified. Therefore, E
it is for the State Legislature to consider legal conditions and make the law
accordingly. The devolution of exercise would also be open to the State to
eliminate or modify. See Constitution Bench Judgment in M Nagaraj & Ors.
v. Union of India & Ors., [2006] 8 SCC 212. Also see Akhil Bharat Goseva
Sangh (3) v. State of A.P. & Ors., [2006] 4 SCC 162 and Ku/dip Nayar and
Ors. v. Union of India & Ors., [2006] 7 SCC I. where a Constitution Bench F
of this Court considered the basic structure theory in paragraph 107 of the
Judgment and held as under:

"107. The basic structure theory imposes limitation on the power of
Parliament to amend the Constitution. An amendment to the G
Constitution under Article 368 could be challenged on the ground of
violation of basic structure of the Constitution. An ordinary legislation
cannot be so challenged. The challenge to a law made, within its
legislative competence, by Parliament on the ground of violation of
the basic structure of the Constitution is thus not available to the
H
598 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A petitioners."

TRANSFER~LOCK, STOCK AND BARREL

The contention of the learned Senior counsel for the respondent that
the transfer of the Tube-well Operators from Irrigation Department to the Gram
B Panchayat was lock, stock and barrel and, therefore, it is a complete and
permanent transfer. This contention is factually incorrect and misplaced. In
fact, out of 26, 117 operators in the Irrigation Department, only 22329 were
transferred and out of that 13,000/- joined back the Irrigation Department
pursuant to the G.O. dated 19.7.2005. This would also clearly show that they
C had a lien with the Parent Department and they had gone back to the Parent
Department.

Mr. P.P. Rao learned senior counsel referred to the case of State of
Mysore v. R.S. Kasi, [1985] 2 SCC 110 where this Court held that the
constitutional scheme is irreversible. He has also referred to the case of S.K.
D Saha v. Prem Prakash Agarwal, [1994] l SCC 431 where this Court held that
the transfer of entire department along with the posts to a university is a
complete transfer. He has also referred to the cases of Bhim Singh v. State
ofHaryana, (1981] 2 SCC 673 and Jawaharlal Nehru University v. Dr. K. S.
Jawatkar, (1989] Supp. 1 SCC 679. In our view, the aforesaid decisions of
this Court cited by learned Senior counsel have no application in the facts
E and circumstances of the case at hand.

Dr. Dhawan learned Senior counsel contended that the power of the
legislature is coupled with duty. They have a duty to perform consistent with
the constitutional goal. In this connection, he has referred to the decisions
F of this Court in the cases of Commissioner of Police v. Gordhandas Bhanji,
[1952] SCR 135, Comptroller and Auditor General of India v. K.S.
Jagannathan, [ 1986] 2 SCC 679 and Terioat Estates (P) Ltd v. U. T.
Chandigarh, (2004] 2 SCC 130. In the view that we have taken the aforesaid
decisions have also no application in the facts of the present controversy.

G PROPERTY VESTED IN THE GRAM PANCHAYAT

It is contended that under Section 34 of the Act, the property,
namely, the Tube-wells were vested in the Gram P.anchayat and by the
impugned order the Tube-well Operators were sought to be transferred back
to the Irrigation Department along with the Tube-wells, which is not permissible.
H
U.P.GRAMPANCHAYATADHIKARISANGHv. DAYARAMSAROJ[H.K.SEMA,J.] 599

Section 34 is in the following tenns: A
"34. Property vested in [Gram Panchayat]-{ I) Subject to any special
reservation made by the State Government, all public property
situated within the jurisdiction of a [Gram Panchayat] shall vest in and
belong to the [Gram Panchayat] and shall, with all other property
which may become vested in the [Gram Panchayat], be under its B
direction, management and control.

(emphasis supplied)

(2) All markets and fairs or such portion thereof as are held upon
public land shall be managed and regulated by the [Gram Panchayat] C
and the [Gram Panchayat] shall receive to the credit of the Gaon Fund
all dues levied or imposed in respect thereof."

Firstly, vesting of the property in the Gram Panchayat employed in
Section 34 would mean the property vested for the purpose of management
and control. Not that the property so vested is fastened to the Panchayat D
and remains as its property. Secondly, public property has been defined
under Section 2(mm) of the Act as under:

"Public Property" and "Public Land" mean any public building, park
or garden or other place to which for the time being the public have E
or are permitted to have access whether on payment or otherwise."

Pµblic property, as defined under Section 2(mm) shows it is referable to
public building, park or garden or other place to which for the time being
public have or are permitted to have free access.
F
It is common knowledge that a tube-well is handled by a technician-an
expert hand. General public does not have free access to the tube-well. They
can only have free access to the water drawn from the tube-well. In our
opinion, therefore, tube-well does not fall within the scope of public property
referred to in Section 34 of the Act.
G
THE BASIC QUESTION FOR CONSIDERATION

The basic question that calls for consideration is the import and intent
of Section 25 of the Act which substituted the original Section 25 by the U.P.
Act No. 27of1999 w.e.f. 27.6.1999.
H
c
600 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Section 25, as amended in 1999, was io the following terms:

"25. Staff-(1) 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,-

B (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
c 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
D 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 (I) a Gram Panchayat may,
E 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
F
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.
G
('!) The Gram Panchayat may delegate to the Pradhan or to any of its
Committees, 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).
H
U. P. GRAM PANCHAYAT ADHIKARI SANGH v. DAY A RAM SAROJ [H.K. SEMA,J.] 601

(5) An appeal from an order imposing any punishment on an employee A
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 (1) from one Gram Panchayat to any other Gram Panchayat B
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 one district to another.

(7) A Nyaya Panchayat may, with the previous approval of the
prescribed authority, appoint any person on its staff in the manner C
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 person under sub-section (7) D
to an authority appointed in this behalf by the State Government."

Section 25, thus, clearly discloses that the transfer shall be made with
such designation as may be specified in the Government Order; transfer and E
posting in Gram Panchayat shall be made by such authority in such manner,
as may be notified by the State Government; the transferred employee to the
Gram Panchayat shall be under the supervision and control of the Gram
Panchayat; the service conditions of the employee shall be 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 F
to him immediately before such transfer; while in service in Gram Panchayat,
they shall perform such duties as may be specified from time to time by the
State Government.

WHETHER IT IS DEPUTATION SIMPLICITER OR TRANSFER
G
Apart from the provisions contained in Section 25, paragraph 9 of the
Government Order dated 1. 7 .1999 further clarifies the position. Paragraph 9
as translated (which is stated to be a correct translation) reads:-

"9. Disbursement of salary of all the employees referred to in Para 4 H
602 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A & 6 and working under the control of Gram Panchayat would be done
by the departments in the same manner as is being done at present,
but the salary of the next month 'WOUid be disbursed on the basis of
attendance verification and monthly report of the Gram Panchayat
Committee concerned. Deductions would be made from the salary of
employees who are unauthorizedly absent."
B
There is no dispute that while working under Gram Panchayats, the
Tube-well Operators were continued to be paid salaries by the Irrigation
Department. They were under the disciplinary control of the Irrigation
Department and also got promotions in the Irrigation Department. There is
C also no dispute that their service conditions were governed by the Service
Rules framed under Article 309 of the Constitution. The expression
"Supervision and Control of the Gram Panchayat" only means to the extent
of transfer of supervision to the Gram Panchayat. The expression "shall serve
under the supervision and control of the Gram Panchayat" would only mean
supervisory powers and control of the Gram Panchayat. The overall control
D of the employee was still with the Government when Section 25(1)(b)
unequivocally provides that they shall perform such duties as may be specified
form time to time by the State Government. This would clearly show that they
were working under the supervisory control of Gram Panchayat keeping lien
with the Parent Department, which is the Irrigation Department. It is clear that
E they were sent on deputation.

Section 25(l)(b) was clearly intended to safeguard the service conditions
of the employees working under Gram Panchayats.

WHETHER IT JS TRANSFER?
F
The next question to be considered is whether they were under transfer
as visualized under Section l(a) of Section 25 of the Act.

It is contended by Senior counsel for the respondents that it cannot be
termed as deputation, because, to be on deputation, tri-partite consent is
G necessary, namely, that of the lending Department, the borrowing Department
and the employees.

We are unable to accept this contention for more reasons than one.
Firstly, the respondents (writ petitioners) did not protest on their being sent
to the Gram Panchayats. They accepted the transfer with conditions without
H
U. P. GRAMPANCHA YAT ADHIKARI SANGH v. DAYA RAM SAROJ [H.K. SEMA,J.] 603

demur knowing fully well their rights and obligations. They also accepted A
the terms and conditions of Section 25 of the Act, as quoted above. No
protest, whatsoever, was raised either by the employees or by Gram Panchayats.
It is not the case of the respondents nor of the Gram Panchayats that the
transfers were made against their consent despite protests. It is, in these
circumstances, that the consent is implied. The expression "Transfer" employed B
in Section 25, in our view, is a misnomer.

It is true that the language used in Section 25 is "Transfer", but one
has to read the Section as a whole, to get the real meaning. The pay and
allowances are paid by the parent department. Their service conditions are
governed by the Service Rules in their respective Parent Departments framed C
under Article 309 of the Constitution. The over all control was vested in the
respective Departments. It is also true that in the Govt. Order various
expressions have been used like transfer, repatriation, dead cadre etc., which
have been subsequently clarified in the counter of the Government. Hundred
errors do not make one right. By reading Section 25 as a whole and
understanding the language employed therein, it is clear that the employees D
of various Departments were sent to gram-panchayats on deputation pure
and simple. They kept their lien in their respective Departments. This is the
correct reading of the Section and nothing more. This is also true to their
own knowledge when they were sent to Gram Panchayats. This is the reason
why the employees of five Departments were sent back to their Departments E
and they joined their own Department without any protest. This is also the
reason why even a section of Tube-well operators would like to go back to
the Parent Department, the Irrigation Department. They are equally aggrieved
by the impugned order of the High Court and have preferred Civil Appeal No.
10091 of2006.
F
That they were sent to Gram Panchayats purely temporarily and on
deputation till the Gram Panchayats themselves make appointments is also
clear from the language employed in Section 25(2) of the Act.

We, accordingly, hold that the expression 'Transfer' is used in Section G
25 loosely. They were actually sent on deputation keeping their lien with their
Parent Departments.

Once we hold that the respondents were on deputation to Gram
Panchayats, the position of deputation in service is well settled by a catena
H
604 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A of decisions of this Court. Avoiding multiplicity, we refer to Kuna! Nanda
v. Union of India and Anr., [2005] 5 SCC 362 as under:

"The basic principle underlying deputation itself is that the person
concerned can always and at any time be repatriated to his parent
department to serve in his substantive position therein at the instance
B of either of the departments and there is no vested right in such a
person to continue for long on deputation or get absorbed in the
department to which he had gone on deputation."

We may also dispose off one contention of Dr. Rajiv Dhawan, learned
C Senior counsel despite our holding that the respondents were sent on
deputation and not on transfer. According to Dr. Dhawan, reading Section
25(a) and Sections 25(6) conjunctively, the State Government is empowered
to transfer any such employee only from one District to another or from one
Panchayat to another. According to him, therefore, the State is incompetent
to pass an order to transfer them back to the Irrigation Department. We are
D unable to accept this submission. Sub-section 6 does not take away the
general power of transfer as it is understood in the language used. What is
intended by sub-section (b) is that apart from the general power of transfer
as visualized in Section 25(a), the State Govt. will also be empowered to
transfer the employee from one District to another District so long as he
E remains under the control of Panchayat. Sub-section( 6), therefore, does not
take away the general power of the Government of transfer/repatriation of the
respondents from Gram Panchayats to the Parent Departments.

In the view that we have taken, the judgment and order of the Division
Bench dated 8.2.2006 is not sustainable in law. The judgment and order of
F the Division Bench quashing G.O. dated 19.7.2005, 25.1.2006 and 8.9.2005; the
direction that the Tube-well Operators and part-time Tube-well Operators are
inextricably connected with the cadre of Gram Panchayat Vikas Adhikari; the
direction that the Part-time Tube-well Operators shall be treated as permanent
employees are all hereby, set aside. The order of the learned Single Judge
dated I 1.8.2005 is restored. The C.W.P. No. 53127 of2005 stands dismissed.
G The Government Order dated I 9.7.2005 with all consequential orders passed
thereunder is restored.

We also noticed that the Division Bench of the High Court has quashed
the Orders dated 8.9.2005 and 25.1.2006, which are not the subject matter of

H
U.P.GRAMPANCHAYATADHIKARISANGHv. DAYARAMSAROJ[H.K.SEMA,J.] 605
the writ petition. The High Court order to that effect is also set aside. The A
Government Orders dated 8.9.2005 and 25.1.2006 are restored.

The employees are directed to go back to their Parent Department and
resume duties within two weeks from today.

The net result is Civil Appeal Nos. 1895/06, 1896/06, 1897/06, 1898/06, B
1899/06, 1900/06, 1901/06, 1902/06, 3455/06, 3523/06 are allowed. Civil Appeal
Nos. 8302-8313/04, 8314-8315/04, 8316/04, 8317-8319/04, 1083/05, 1084/05, 2920/
05, 680/05 and 6090/01 are dismissed.

Contempt Petition Nos. 114 & 141 of 2006 are discharged.
c
No order as to costs.

B.S. Appeals dismissed and Contempt Petitions discharged.