Rakesh Kumar Jain, J.The appeals bearing LPA Nos.64 to 67,102, 203, 204 & 205 of 2008 and CWP No.805 of 2011 have been filed by Gram Vikas Sahayaks, who are aggrieved against the order dated 31.1.2007 of the learned Single Judge by which writ petitions filed by the Gram Sachivs have been allowed and their petitions have been dismissed.

2. The brief facts of the case are that 414 posts of Gram Sachivs in the Department of Development and Panchayats, Haryana were advertised on 22.2.1997 by the Haryana Staff Selection Commission [for short HSSC]. The written examinations were conducted on 7.2.1999, interviews were held in June 1999 and the selection list was prepared but no appointment was given. While they were waiting for their appointment, the Government decided to abolish Octroi in the State of Haryana w.e.f. 1.11.1999 and in order to adjust the surplus staff against the existing vacancies in different departments of State Government, State Public Undertakings, Corporations and Boards etc., all the requisitions made by the Government Departments with the HSSC/Employment Exchanges, in Group C and D posts including the posts of Gram Sachivs were withdrawn on 12.11.1999 and it was communicated by the Director of Panchayats to the HSSC, Chandigarh on 19.11.1999 with the request that the posts of Gram Sachivs sent by the Department stood withdrawn.

3. Those Gram Sachivs preferred many writ petitions seeking a direction for their appointment pursuant to their selection against 414 posts advertised on 22.2.1997.

4. It may be pertinent to mention that the posts of Gram Sachivs were advertised in terms of Sections 14 & 15 of the Haryana Panchayati Raj Act, 1994 [for short the Act of 1994] but while the writ petitions filed by the Gram Sachivs were pending, Sections 14 & 15 of the Act of 1994 were amended by the Haryana Panchayati Raj Amendment Act, 2003 (for short the Act of 2003) providing the posts of Gram Vikas Sahayaks without abolishing the posts of Gram Sachivs. The present appellants were appointed as Gram Vikas Sahayaks by the respective Gram Panchayats in 2003.

5. The Act of 1994 was still amended by the Haryana Panchayati Raj Amendment Act, 2005 (for short the Act of 2005) w.e.f. 17.1.2006, the pre 2003 position was restored, the post of Gram Sachiv was revived, that of Gram Sahayak was specifically abolished and the appellants were relieved from their services with immediate effect.

6. The appellants also filed writ petitions with a prayer to declare the amendment/substitution in Section 14 & 15 of the Act of 2005 as illegal.

7. In this manner, set of two cases were there before writ Court, one filed by the Gram Sachivs seeking direction for the purpose of their appointments in terms of their selection to 414 posts pursuant to advertisement dated 22.2.1997 and the other by the Gram Vikas Sahayaks, appointed in view of the amendment Act of 2003 but relieved in view of the Act of 2005 when their posts were specifically abolished.

8. The learned Single Judge, while taking up both the sets of cases, has dismissed the writ petitions filed by the Gram Vikas Sahayaks and allowed the writ petitions filed by the Gram Sachivs with the direction that the selected candidates for the post of Gram Sachivs in the year 1999 be first absorbed and then the remaining available posts be filled by further selection process. It was also observed that they would get pay only from the date of their joining on the post of Gram Sachivs and shall not claim any arrears of pay and seniority. It was directed that the needful be done within three months from the date of order. The case of the Gram Sachivs is that the impugned judgment dated 31.1.2007 has not been challenged by the State of Haryana rather the said judgment has been implemented as they have been appointed between May 2007 to August 2007 and are continuing on the said post since then.

9. Learned counsel for the appellants has submitted that by virtue of Constitution (73rd) Amendment Act, 1692 w.e.f. 1.6.1993, Article 243(G) was inserted in Para IX of the Constitution requiring that the State Legislature by law to endow to Panchayats with such power and authority to enable them to function as institution of self Government. The State of Haryana though amended the Act of 1994 but no steps were taken to devolve the powers upon Panchayat which was done only in 2003 when it decided to appoint Gram Vikas Sahayaks under the Panchayats for its assistance. It is argued that the posts of Gram Vikas Sahayak is statutory post created by law for a Panchayat and was filled up by the competent authority following the procedure laid down under the Rules known as Haryana Panchayati Raj (2nd Amendment) Rules, 2003. It is further argued that the learned Single Judge has erred in passing order of appointment of the private respondents to the posts of Gram Sachivs advertised in the year 1999 though it has been decided to declare the cadre of Gram Sachivs as diminishing cadre. It is further submitted that the posts, which became available because of the diminishing cadre of the Gram Sachivs, could be filled only by the persons so retrenched as Gram Vikas Sahayaks, who have been discharging the functions of Gram Sachivs with higher qualification on lower salary because the post of Gram Vikas Sahayak was under the Panchayat. It is further submitted that the policy in respect of particular project adopted by the State Government should not be changed with change of the Government. The State Legislature cannot make law when power is exercised in bad faith to attain ends beyond the sanctioned purposes of power as it would be called a colourable exercise of the authority. It is, thus, argued that once in order to obedience to Article 243(G), the Panchayats under the State of Haryana were empowered to amend Sections 14 & 15 by amending the Act of 2003 and a decision was taken to appoint Gram Vikas Sahayaks in the villages by following due procedure, who would be an employee of the Panchayat, to help in its day to day functioning, their services could not have been terminated to make way for the appointments of Gram Sachivs.

10. Mr. Girish Agnihotri, learned senior counsel appearing on behalf of the appellants in LPA No.208 of 2008 has also supported the arguments of Mr.G.K. Chatrath, learned senior counsel appearing on behalf of the appellants and has submitted that no direction has been issued by the learned Single Judge to adjust the appellants on the remaining posts after absorption of the Gram Sachivs because as many as 307 posts are available.

11. Learned counsel for the State of Haryana has submitted that in all the appeals filed by the Gram Vikas Sahayaks their claim is based upon the Act of 2003 in which Section 2(2) provides the status of the Gram Vikas Sahayaks to the effect that "he shall not be an employee of the Government and consequently he shall have no claim for regular pay scale or benefit of service conditions as applicable in case of Government servant or for any type of post retrial benefits" He has argued that this status has not been challenged by the appellants at any stage in the proceedings and accordingly the Gram Vikas Sahayaks were never the employees of the Government of Haryana and have no right or claim to any post in the service of State of Haryana. It is further submitted that Section 16 of the Act of 1994 already provided that "with the previous approval of the Panchayat Samiti, a Gram Panchayat may employ each other servants other than the Gram Sachiv as are considered necessary for carrying out the duties imposed on it by this Act and may suspend, dismiss or otherwise punish such servants and accordingly they can still be considered and appointed by respective Gram Panchayats. "

12. He has submitted that the provisions of the Act of 2003 was an overlapping provision because the provision for appointment to the post of Gram Vikas Sahayaks to assist the Gram Sachivs was already in existence in the Act of 1994 and as such the Act of 2005 has not effected the existing provision of Section 16 of the Act of 1994. It is further argued that Gram Sachivs are the employees of Government under the Administrative and disciplinary Control of the Government whereas the Gram Vikas Sahayaks are neither responsible nor accountable to Government. It is also submitted that at present the total available vacancies are only 135 and it is not feasible or possible to consider the Gram Vikas Sahayaks to adjust them against those vacant vacancies as they are 1800 in number.

13. Mr. Rajiv Atma Ram, learned senior counsel appearing on behalf of the private respondents/Gra Sachivs has submitted that even as per the Act of 2003, the Gram Vikas Sahayaks were to appointed by Gram Panchayats who were not the employees of the Government and were not entitled to claim benefit of service conditions or any post retrial benefit as applicable in case Government servants as they were paid Honorarium of Rs. 3000/- or at such rate as may be prescribed from time to time, the Gram Panchayat was appointing and disciplinary authority for a Gram Vikas Sahayak having no control of the Government over them. Their duties were to maintain liaison between Government and Gram Panchayat and the inhabitants of the village. He is to assist the Government in effecting recoveries or dues relating to electricity bills or any other dues and disbursement of old age, handicap and widow pension on commission basis to be determined by the Government. As per Section 15 of the Act of the Act of 2003, the work of the Gram Vikas Sahayaks was to be supervised by a Gram Sachiv in the capacity of Circle Supervisor.

14. On the other hand, services of Gram Sachivs were governed by statutory rules, namely, Haryana Development and Panchayats Development (Group C) Rules, 1980 and are now governed by the new 2012 Rules. The Gram Sachivs are Government employees who are working against regular cadre, getting regular pay scale, working under direct control of the State Government as the Haryana Civil Services Rules and the Haryana Civil Services (Punishment and Appeal) Rules, 1987 are applicable to them. It is also submitted that the duties of the Gram Sachivs and Gram Vikas Sahayaks are totally different as the Gram Sachiv is mainly required to maintain account books of the Gram Panchayat which is not the duty of Gram Vikas Sahayak rather the Gram Sachivs is to supervise the work of the Gram Vikas Sahayaks. He has further argued that the Act of 2003 is a redundant piece of legislative because there was already a provision for appointment of Gram Vikas Sahayaks in Section 16 of the Act of 1994, the Act of 2003 did not abolish the posts of Gram Sachivs rather Gram Sachiv was to be appointed as Circular Supervisor to supervise the work of Gram Vikas Sahayaks and even after the Act of 2005 which is under challenge, the Panchayats have been empowered to appoint servants like Gram Vikas Sahayaks under Section 16 of the said Act. It is further submitted that no prayer has been made in the writ petition challenging the appointment of the Gram Sachivs and if the point is not raised in the writ petition if cannot be agitated in the appeal. In this regard, he has relied upon decision of the Supreme Court in the case of "Ganeshi Ram v. District Magistrate" 1967 AIR (SC) 356, "B.S.N. Joshi and sons Ltd. v. Nair Coal Services Ltd. "2006 (11) SCC 548 [LQ/SC/2006/1018] . He has further submitted that though selection does not give indefeasible right to the appointment but that appointment pursuant to a valid process of selection cannot be denied arbitrarily. In this regard, he has relied upon judgment of the Supreme Court in the case of "Shankarsao Dash v. Union of India" 1991 (3) SCC 47 [LQ/SC/1991/253] . At the end, it is submitted that the appellants have been working since 2007 to the total satisfaction of their employers and most of them have now become overage for any fresh recruitment.

15. We have heard counsel for the parties and perused the record.

16. Before we proceed to record our reasons for deciding the issues involved, it would be appropriate to refer to the relevant provisions of Sections 14 & 15 of the Act of 1994, Sections 14 & 15 of the Act of 2003, and Sections 14 & 15 of the Act of 2005, which read as under:

"Sections 14 & 15 of the Act of 1994

14. Appointment of Gram Sachivs.

There shall be a Gram Sachiv for every Gram Panchayat or group of Gram Panchayat who shall be appointed by Government.

15. Duties of Gram Sachivs.

(1) It shall be the duty of the Gram Sachiv to

(i) maintain accurate and upto-date entries in accounts record and other property of the Gram Panchayat under the general supervision of the Sarpanch and to assist the Gram Panchayat in the discharge of its duties and functions under this Act or under any other law for the time being in force ;

(ii) assist in carrying out the resolutions of the Gram Panchayats; and

(iii) perform such other duties as may be prescribed.

(2)A Gram Sachiv, subject to the control of the Sarpanch

(a) after recording the proceedings, shall append his signatures in the proceeding book;

(b) shall prepare the replies of audit notes and submit the same to the Block Development and Panchayat Officer after approval of the Gram Sabha, within one month of the receipt of such notes ; and

(c) shall sign daily balances in cash book."

"Sections 14 &15 of the Act of 2003

14. Appointment of Gram Vikas Sahayak.

(1) For each Gram Panchayat there will be an office of Gram Vikas Sahayak which will be filled up on such terms and conditions and in such manner as may be prescribed, Gram Vikas Sahayak shall assist the Gram Panchayat in maintaining record of the Gram Panchayat and perform such other duties as may be assigned by the Gram Panchayat or prescribed by the Government. He will also act as a link between the Gram Panchayat and the Government will assist in effecting recoveries of dues relating to Government or State enterprises on commission basis which shall be determined by the Government from time to time. He will be paid such honorarium by the Gram Panchayat as may be prescribed.

(2) Gram Vikas Sahayak shall not be an employee of the Government and consequently he shall have no claim for regular pay scale or benefit of service conditions as applicable in case of Government servant or for any type of post retrial benefits.

15. Appointment of Circle Supervisors for a Group of Gram Panchayats; -.

For a group of Gram Panchayats there may be a Circle Supervisor from amongst the existing gram Sachivs to supervise the work of Gram Vikas Sahayaks and to discharge such other duties and perform such other functions as may be assigned to him by the Gram Panchayat or by the Government from time to time or as may be prescribed. The groups of Gram Panchayat shall be formed in the manner prescribed.

"Sections 14 & 15 of the Act of 2005

14. Appointment of Gram Sachivs.

There shall be a Gram Sachiv for every Gram Panchayat or group of Gram Panchayats who shall be appointed by Government.

15. Duties of Gram Sachivs.

(1) It shall be the duty of the Gram Sachiv to

(i) maintain accurate and upto-date entries in accounts record and other property of the Gram Panchayat under the general supervision of the Sarpanch and to assist the Gram Panchayat in the discharge of its duties and functions under this Act or under any other law for the time being in force ;

(ii) assist in carrying out the resolutions of the Gram Panchayats; and

(iii) perform such other duties as may be prescribed.

(2) A Gram Sachiv, subject to the control of the Sarpanch

(a) after recording the proceedings, shall append his signatures in the proceeding book;

(b) shall prepare the replies of audit notes and submit the same to the Block Development and Panchayat Officer after approval of the Gram Sabha, within one month of the receipt of such notes ; and

(c) shall sign daily balances in cash book."

17. From the perusal of the aforesaid provisions, it is apparent that post of Gram Sachiv was there in the Act of 1994 who was to be appointed by the Government. The duty of the Gram Sachiv was to maintain accurate and up-to-date entries in accounts, records and other property of the Gram Panchayat and to assist the Gram Panchayat in the discharge of its duties and functions under the Act but by virtue of amendment Act of 2003, Sections 14 & 15 of the Act of 1994 were substituted and the post of Gram Vikas Sahayak was created in each Gram Panchayats which were to be filled in the manner prescribed. The Gram Vikas Sahayaks were to assist the Gram Panchayat and was to act as a link between Gram Panchayat and the Government and to assist in effecting recoveries of dues relating to Government or State enterprises on commission basis which was determined by the Government from time to time and was to be paid honorarium by the Gram Panchayat as may be prescribed. It is also provided therein that he would not be the employee of the Government and would not claim any regular pay scale or benefit of the State Government of the service conditions during the service or any post retrial benefits. It was also particularly provided under Section 15 that the Gram Sachivs would supervise the work of the Gram Vikas Sahayaks, however, the post of Gram Vikas Sahayaks was abolished by the Act of 2005 with the re-substitution of Sections 14 and 15.

18. The respondents, who had been selected after written test and interviewed pursuant to the advertisement dated 22.2.1997, were not appointed because of the decision of the subsequent Government, who wanted to absorb or adjust the surplus staff of Municipal Committees and had given appointment to Gram Vikas Sahayaks in terms of provisions of the Act of 2003 over looking the claim of Gram Sachivs who had been selected under the Act of 1994.

19. We are not in agreement with the argument of the appellants that Gram Vikas Sahayaks are the Government employees because it is specifically provided in Section 15 of the Act of 2003 that they would not be employee of the Government and would not have any claim for regular pay scales or benefit of service conditions applicable to the Government servants. Rather they were appointed to work on commission basis or on such honorarium as may be prescribed. Initially, they were paid remuneration of Rs. 3000/- which was reduced to Rs. 1/- because of which many had left the job and many filed the writ petitions because of reduction of remuneration which are stated to be pending. The Gram Vikas Sahayaks have not been given the status of a Government employee which has been conferred upon Gram Sachivs as per Section 14 of the Act of 1994 as it clearly provides that the Gram Sachivs are appointed by the Government.

20. We are not impressed with the submission of the learned counsel for the appellants that after the formation of new Government in 2005 the policies made by the earlier Government were illegally cancelled as it would apply to the case of the appellants themselves because the post of Gram Sachivs were decided to be filled up by a particular Government which was decided to be undone by the subsequent Government in the year 1999 when it came into power and decided to fill up Group C and D posts with the surplus staff of the Octroi department working in various Municipal Committees in the State of Haryana. It has also rightly observed by the learned Single Judge that with the amendment Act of 2003 the office of Gram Vikas Sahayaks was created in the Gram Panchayat and there is no creation of any cadre of Gram Vikas Sahayaks, which could be the responsibility of the State Government to maintain as the Gram Vikas Sahayaks were to work only on honorarium. It has also been rightly observed that there was no arbitrary action on the part of the State in abolishing the posts of Gram Vikas Sahayaks as they were not the employee of the State Government and were working just on honorarium which was further reduced from Rs. 3000/-to Rs. 1/-.

21. The learned Single Judge has found that the selected Gram Sachivs could not be appointed because preference was given to the surplus staff working in the Octroi department in various Municipal Committees but during the pendency of the writ petitions more than 600 posts of Gram Sachivs became available which were to be filled up by new selection by the HSSC but as there was no defect pointed out insofar as the selection process for the post of Gram Sachivs in the year 1999 is concerned, it was held that the candidates selected for the posts of Gram Sachivs in the year 1999 be absorbed against the available vacancies and thereafter the remaining posts be filed up by further process of selection. The Gram Vikas Sahayaks had certainly no right to the posts as they were the employees of the Gram Panchayats and not the State Government. After the Act of 2005, their services have been terminated but it has been argued before us that there are 307 vacancies against which the Gram Vikas Sahayaks could be adjusted.

22. In this behalf, some data has been given to the Court by the State according to which there were 1322 sanctioned posts in the year 1999 out of which 636 posts were vacant on 24.12.1999 which were filled up from the surplus staff from the Municipal Committees. On 21.2.2006, 184 posts became available due to retirement of the Gram Sachivs and on 23.8.2006, 589 more posts were created and as such 773 posts became available. On 4.5.2007, 414 posts were filled up out of 773 posts in terms of order of the learned Single Judge out of which 82 candidates did not join as only 329 had joined the posts. Out of the waiting list 42 more candidates were offered to join the posts but 12 candidates again did not join and in this manner 359 candidates joined their duties. On 12.2.2009, the total sanctioned posts of Gram Sachivs were 2237 but out of 773 vacant posts, 359 had joined and 414 posts remained vacant. On 12.2.2009, 326 more posts were created so there was total 730 posts and 140 more posts were became available due to retirement raising the total strength of 870 vacant posts. A requisition was sent to the HSSC on 10.6.2008/22.4.2010 for 400 & 470 posts respectively which were filled up on 22.6.2012 and at present due to further retirement 135 posts were available from 2010 till date. In this manner as against 1800 Gram Vikas Sahayaks, only 135 posts are available on which they cannot be adjusted.

23. Looking from any angles, we could not persuade ourselves to take a view different from the view that has been taken by the learned Single Judge while dismissing the writ petitions filed by the Gram Was Sahayaks and allowed the writ petitions filed by the Gram Sachivs. Thus, while upholding the order of the learned Single Judge dated 31.1.2007, the present appeals and the writ petition filed by the Gram Vikas Sahayaks are hereby dismissed.