Writ Petition No.1109 of 1999

9th May, 2014

Petitioner Counsel: Mr. V.J. DIXIT
Respondent Counsel: Mrs. A.V. GONDHALEKAR

Cases Cited:
State of Gujarat & Anr. Vs. Raman Lal Keshav Lal Soni & Ors., (1983) 2 SCC 33 [Para 3,4,13]

JUDGMENT

S. V. GANGAPURWALA, J. :- Heard.

2. The Petitioners seek directions to treat all the Grampanchayat employees as the State Government Employees and further claim that they are entitled for the benefits of the salaries and wages, allowances and pensionery benefits on par with the State Government employees, Zilla Parishad employees and Municipal employees.

3. Mr.Dixit, learned Senior counsel in his usual lucid style put forth following propositions :-

(a) The Village Panchayat is the instrument of the Rural Development and is a local self-Government. The functioning of the village Panchayat is governed by the Village Panchayat Act, 1958. Various functions are entrusted to the village panchayats and for the purposes of achieving various objects, power is given to appoint the local staff by the Village Panchayat. Some of the functions performed by the Panchayat are sanitation, vaccination programme, maintenance of village roads, small irrigation water supply scheme, collection of house tax and octroi, promotion of social welfare health and family planning programmes. All these works are in the nature of supplementary government functions. The power is given to the Village Panchayat to raise its funds by way of tax or fee imposed under various heads with prior permission of the State Government. Since 1965 the State Government has stopped giving any grants for salary purposes. The employees are recruited by the Grampanchayat, such as clerk, peon and sweepers. The employees of the Grampanchayat are paid meager amount as compared to the employees of Municipal Council or Zilla Parishad. According to the learned Senior counsel, all developmental work of the State Government are being executed and done by the Village Panchayat employees and their contribution is much higher than the Municipal Council and Zilla Parishad employees.

(b) The failure on the part of the State Government to pay to the Grampanchayat employees salaries equal to or bearing a reasonable ratio to the salaries of the Government employees is discriminatory and violative of Article 14 of the Constitution of India. The learned Senior counsel states that the Apex Court in a case of "State of Gujarat and another Vs. Raman Lal Keshav Lal Soni" reported in (1983) 2 Supreme Court Cases 33, has observed that the Panchayat service is a civil service of the State. The members of the Panchayat service belong to the Government and they are Government servants. The panchayat functions as an institution i.e. local self-Government.

(c) The Village Panchayat employees though work in small area but work as instrumentality of the Government for achieving the aim of the local self-Government but they are paid meagerly and are denied all the benefits given to the State Government employees. The learned Senior Counsel states that Chapter IX of the Constitution of India deals with Panchayats. Article 243-G lays down the powers and authorities of the Panchayats. The panchayat is entitled to levy, collect and appropriate taxes, duties and tolls and fees in accordance with the procedure prescribed as per Article 243-H of the Constitution of India. Article 243-R says that the State may by law endow the Panchayat such powers to enable the Panchayat to function as an institution of self-Government. The learned Senior counsel relies on the provisions of Maharashtra Village Panchayat Act, wherein Section 39 gives powers to the Commissioner to remove Sarpanch and Upa-sarpanch under certain circumstances. The Act contemplates inquiry by the Chief Executive Officer of the Zilla Parishad being the delegate of the State Government. Section 45 of the Act gives administrative powers and indicates the duties of the Panchayat such as to take over and maintain water supply schemes, so also prescribing giving grant-in-aid to any institution, it can make provision for carrying out any such work which is likely to promote the health, safety, education, comfort, convenience or social or economic or cultural well being of the inhabitants of the village. It also has to take measures for amelioration of the conditions of Scheduled Caste and Scheduled Tribes and other Backward Classes. It has to endeavour to encourage co-operative societies in increasing and improving agricultural production. Section 58 of the Act provides for the village fund. Section 60 of the Act, lays down that the Secretary of the Panchayat shall be appointed by the Chief Officer of the Zilla Parishad, who has to function within the ambit of Chapter V of the Act. Apart from the Chief Officer of the Zilla Parishad, the District Collector can also act as Supervisory authority of the Village Panchayat. The provisions under Chapter XI of the Panchayats Act, indicates the control of the State over the administration of the Village Panchayat. According to the learned Senior counsel, perusal of the scheme of the Act, the performance of the powers and functions and also execution of the work done through the employees make it abundantly clear that the employees of the Panchayats are civil servants, inter-alia Government servants. However, they are being discriminated with regard to the pay and allowances. They are entitled for the pay and allowances as that of Government servants and/or the Zilla Parishad.

4. Mrs.Gondhalekar, learned Asstt. Govt. Pleader states that the Government of Maharashtra vide Government Resolution dated 21.1.2000 laid down principles for adopting a staffing pattern based on the population of the village Panchayat. The staffing pattern for all Village Panchayats having population below 3000 is one peon and one person for operation of streetlights and water pump. The scope of civic work i.e. expected to be carried out at such places is part time with a meager operation of streetlights and water pump at certain time intervals. The man hours required for this work is less and it is expected that the residents of the village shall carry out this duty part time along with his main profession. The salary aspect is therefore, limited to minimum wages. According to learned Asstt. Govt. Pleader there are in all 27837 Village Panchayats in the State of Maharashtra. If the categorisation of the village population is seen, almost 7239 Village Panchayats have population of less than 1000 people. 15658 Village Panchayats have population between 1001 to 3000 people and only 4940 Village Panchayats have population above 3000. 82% of the total Grampanchayats have population of less than 3000 people. The quantum of work generated in 82% Village Panchayats is only part time work. The judgment of the Apex Court in a case of "State of Gujarat and another Vs. Raman Lal Keshav Lal Soni and others" referred supra is on altogether different premise. The same is based on the Gujarat Panchayats Act, 1961 which is in no way similar to the Bombay Village Panchayat Act. In Gujarat State, Gujarat Panchayats Act, 1961 covers the whole structure of Panchayat Raj system from Zilla Parishad, Panchayat Samiti to village Panchayat level, whereas in Maharashtra Zilla Parishads and Panchayat Samitis are governed by separate Act, called as 'Maharashtra Zilla Parishads and Panchayat Samitis Act and Village Panchayats are governed by the Bombay Village Panchayats Act. The employees of Village Panchayats are not transferable from one Village Panchayat to another. The Gramsevak is an employee of Zilla Parishad and his salary is taken care by the Zilla Parishad.

5. According to learned Asstt. Govt. Pleader, the Government of Maharashtra has time and again revised the minimum wages paid to the Village Panchayat employees vide its Government Resolution. The latest one is issued on 7.8.2003. It has been directed to all the Village Panchayats that minimum wages has to be paid to all Village Panchayat employees. According to the learned Asstt.Govt. Pleader, the Government of Maharashtra has discontinued pension scheme to all its employees after 1.11.2005. As a welfare measure, in the interest of Grampanchayat employees, Government of Maharashtra vide its GR dated 19.8.2005, has reserved 10% of all the Grade C and D post of the Zilla Parishad that fall vacant in a year for the Village Panchayat employees of the respective Districts. The benefits of Provident Fund scheme have also been bestowed upon the employees of the Village Panchayats. There are only 55000 employees in 27837 Village Panchayats. The State of Maharashtra bears burden of 50% of the minimum wages paid to the Village Panchayat employees by way of grants and where Village Panchayat is not in a position to bear burden of the salary to its employees i.e. minimum wages then Government contribute for the same. According to the learned Asstt. Govt. Pleader, the Writ Petition deserves to be dismissed.

6. We have considered the arguments canvassed by the learned Senior counsel for the petitioners and learned Asstt. Govt. Pleader, at length.

7. There can not be any dispute with the proposition that a Village Panchayat is a local self-Government. Even Article 243-D of the Constitution of India, defines Panchayat as an institution of self-Government constituted under Article 243-B for the Rural areas. It has to carry out its objects and functions as enumerated under Bombay (now Maharashtra) Village Panchayats Act, 1958.

8. The panchayat as per the constitutional mandate is required to perform multifarious activities. It has to implement schemes for economic development and social justice as entrusted to it including those in relation to matters as detailed in 11th Schedule of the Constitution of India, such as agriculture, land reform, minor irrigation, water management and animal husbandry etc. However, for implementing various schemes as entrusted to them, Panchayat is not required to hire permanent employees. The development work is carried out by the panchayat through peoples participation, civil contractors and Employment Guarantee Schemes. The said development work is carried out and supervised by the Gramsavek of the Village Panchayat, who is a full time employee of the Zilla Parishad. The staffing pattern for a Grampanchayat is fixed by the Government vide its various notifications and resolutions. 82% of the Village Panchayats in the State of Maharashtra have population below 3000, staffing pattern consist of one peon one street light and water pump operator who are mostly appointed part-time. 27837 Village Panchayats in State of Maharashtra have total 55000 employees and majority of them as stated by the Government are part timers who are performing their own avocation i.e. agriculture and also do the work of village Panchayat part time.

9. The servant of the Village Panchayat is appointed U/s 61 of the Maharashtra Village Panchayat Act and would be governed by the Bombay Village Panchayats Servants (Recruitment and Conditions of Service) Rules, 1960. The said rules are framed by virtue of powers U/s 176 of the Maharashtra Village Panchayats Act. The said rules regulate the qualification, eligibility, appointments, condition of service etc. of the employees of Village Panchayat. The employment of a person would be governed by the enactment under which he is appointed so also the rules framed thereunder. If the service conditions of particular employees are governed by a statute, they could only be altered or amended by another statute and in case they are governed by the statutory rules then the service conditions of such employees can be altered only by a statute or statutory rules. Pay-scale or emoluments of an employee is a part of the condition of service.

10. The grievance put forth by the petitioners is that the employee of the Grampanchayat should be paid the salaries, wages allowances and pensionary benefits on par with the State Government employees and/or Zilla Parishad employees or the Municipal Council employees functioning in the respective cadres. The State Government has clarified that on and from 1.11.2005, the Government of Maharashtra has discontinued the pension scheme to all its employees employed after 1.11.2005.

11. The State has clarified that none of the employee of Village Panchayat shall get less than the minimum wages and the State Goverrnment has also taken up the responsibility to contribute 50% of the burden of the minimum wages paid to the Village Panchayat Employees.

12. Recently, vide Government Resolution dated 7.8.2013, the Government has revised the minimum wages to be paid to the Village Panchayat employees. The Government of Maharashtra has also enacted the Maharashtra Grampanchayat (Employees) Provident Fund Rules, wherein benefits of the provident fund scheme have been bestowed upon the employees through the Village Panchayats for their future welfare. The Government has also issued Government Resolution dated 19.8.2005, wherein 10% of the Grade C and D posts of Zilla Parishad that fall vacant in a year have been reserved for the Village Panchayat employees of the respective Districts and benefit of age relaxation upto 45 years have also been given to these employees and for that purpose has also prepared a common seniority list. It is clear that employee of Village Panchayat would not be getting less than the minimum wages howsoever small the Village Panchayat is.; Even this Court in W.P.No.2893/1986, had directed the payment of minimum wages to the Grampanchayat employees. The said judgment is upheld by the Apex Court. It is clarified by the State that the said orders are complied and minimum wages are being paid to all the employees of the Village Panchayats.

13. Reliance placed by the petitioner on the judgment of the Apex Court in a case of "State of Gujarat and another Vs. Raman Lal Keshav Lal Soni and others" reported in (1983) 2 Supreme Court Cases 33, would not be of any assistance. The Apex Court was dealing with the payment of a Government servant who was sent on deputation to work with the Village Panchayat. Moreover, the Gujarat Panchayat Act, 1961 is in no way similar to the Maharashtra Village Panchayats Act, 1958. In Maharashtra, Maharashtra Village Panchayats Act, 1958 is exclusively meant for the Village Panchayats only, whereas the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 governs all aspects relating to Zilla Parishads and Panchayat Samitis, whereas in Gujarat State, Gujarat Act, 1961 covers whole structure of the Pancnayat Raj system from Zilla Parishad, Panchayat Samiti to Village Pancnayat level. In Gujarat State, there exist Panchayat Service which is governed by the Gujarat Panchayat Rules. These rules provide for equation of posts, fixation of seniority, scales of pay and allowances for its employees. The employees working in the service are transferable between the District and hence, the condition of service are common to all employees and posts in all levels of Panchayat bodies. In Maharashtra State, the Maharashtra Village Panchayat Act, 1958 deals exclusively with the Village Panchayats. The employees are not transferable from one Village Panchayat to another. The employees are employed by the Village Panchayats as per their requirements. The Maharashtra Zilla Parishads and Panchayat Samitis Act, deals exclusively with the Zilla Parishads and the Panchayat Samitis. The Zilla Parishad is empowered to appoint its own employees and are governed by the Rules framed under the said Act. The organisational structure, conditions of service are totally different in the State of Maharashtra and the State of Gujarat.

14. Pay parity or equal pay for equal work does not have mechanical application. Some similarity in duties and functions is not enough to apply the principle. If there is qualitative difference in duties, functions and responsibility in two organisations, the concept of pay parity can not applied. When there is a difference in the nature, context, quality prescribed for the job, the aspect of equal pay would not arise. The employees of Village Panchayats are not transferable from one Village Panchayat to another. The State has clarified that no similarity exist in the nature of work done by an employee of the Municipal Corporation, Municipal Council or Zilla Parishad one one hand and the employee of the village Panchayat on the other. There exist no similarity in the recruitment process of an employee of the Village Panchayat on one hand and that of the Municipal Corporation and Municipal Council or Zilla Parishad on the other hand. All employees of Municipal Corporation, Municipal Council, Zilla Parishads are recruited through the process of qualifying examinations, interviews and educational qualifications required for the posts are prescribed, whereas employees of Village Panchayats do not have to undergo such qualifying process and are employed solely as per the will of the elected representatives of the Village Panchayats. The quantum of functions performed by a Village Panchayat employee and a Municipal Council and Zilla Parishad employee are in no way similar. 82% of the Village Panchayats have to cater to the population of less than 3000. The quantum of work and the salary are relative to the quantum of population and tax collection. The employee of a Village Panchayat one one hand and that of a Zilla Pariswhad or Municipal Council on another can not be said to be similarly placed so as to claim pay parity. The Recruitment Rules of the employees of the Village Panchayats, more particularly Rule 6 lays down that the pay and allowances of a Panchayat servant shall be such, as may be fixed by the Panchayat having regard to its financial position and not exceeding the pay and allowances fixed for the Government servants or Zilla Parishad servants of corresponding category whichever is less. The petitioners have nowhere demonstrated that the nature of the work performed by the employee of a Village Panchayat is similar to that of a corresponding employee of Zilla Parishad or Municipal Council. As discussed supra, even the process of selection between the employees of Village Panchayat, Zilla Parishads and Municipal Council is different. The eligibility criteria is different.

15. Parity of pay can be claimed only if it is established that the eligibility, mode of selection/recruitment, nature and quality of work so also duties functional need and responsibilities and status of both the posts are identical. Granting of parity in pay-scales would depend upon the comparative evaluation of jobs and equation of posts. It is the Expert Committee which has to decide such issues as the fixation of pay-scales etc. falls within the exclusive domain of the executive. The Court in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. Unless there is a complete identity between the two posts, they can not be treated as equivalent and the principle of equal pay for equal work can not be applied.

16. Considering the above, the contention of the petitioners of pay parity can not be considered. The Writ Petition as such is disposed of. Rule discharged. No costs.

Ordered accordingly.