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1979 DIGILAW 69 (KAR)

RAMACHANDRA SHETTY v. STATE OF KARNATAKA

1979-03-07

CHANDRASHEKARAIAH, K.S.PUTTASWAMY

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( 1 ) THESE two petitions under Art. 226 of the Constitution, have been referred to a Division Bench. ( 2 ) THE petitioners in these petitions are officials of the Mangalore, City municipality (hereinafter referred to as the 'municipality' ). By the order oi the Divisional Commissioner, Mysore, dated 21. 6. 1978 (Ex 'a') they were transferred from that Municipality. Ramachandra Shetty, the petitioner in W. P. No. 7349 of 1978, was transferred to Belthangadi Municipality. B. Gopal, the petitioner in, W. P. No. 1350 of 1978, was transferred to Udipi Town Municipality. In these petitions, they have challenged the constitutional validity of S. 320 of the Karnataka, Municipalities Act, 1964 (hereinafter referred to as the 'act' ). They have also impugned the aforesaid order transfering them from Mangalore Municipality. ( 3 ) WE shall first proceed to deal with the challenge to the legislative competence to enact S. 320 of the Act. Shri K. Shivashankar Bhat, learned counsel for the petitioners, contended that that Section is beyond the legislative competence of the State Legislature. That Section reads: "powers to Transfer Officers; - (1) Notwithstanding anything contained in this Act, the Government shall have power for transfer any office or servant of a municipal council to the service of any other municipal Council or of any other local authority off of any government Department. (2) The Government shall have power to issue such general of special directions as it thinks necessary for the purpose of giving due effect to transfers made under sub-section (1) and such directions shall be complied with by thei municipal council and any municipal authority concerned. " , the source of the power of the State Legislature to enact the impugned section is Entry 5 of List II of the VII Schedule to the Constitution That entry reads : "local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-Government or village administration. " shri Shivasnankar Bhat contended that by virtue of this Entry the state Legislature is competent to legislate) on the topic of constitution and powers of municipal bodies and that transfer of employees of one municipal body to another municipal body, does not come within the ambit of either constitution or power of municipal bodies. " shri Shivasnankar Bhat contended that by virtue of this Entry the state Legislature is competent to legislate) on the topic of constitution and powers of municipal bodies and that transfer of employees of one municipal body to another municipal body, does not come within the ambit of either constitution or power of municipal bodies. Shri Shivashankar Bhat - sought to derive support for his above contention from certain observations in Shivarudrappa v. Kapurchand, AIR 1965 Mys. 76. There a, Division Bench of this court observed:"now, the relevant dictionary meaning of the word 'constitution' is establishment. . . . . . Constitution and Organisation, of the High court is not a, subject relating to jurisdiction and power of the High courts but has reference only to the establishment or the constitution of the High Courts while the 3rd ' Entry of the State List is what authorises legislation, on such jurisdiction and powers. "even if the word 'constitution' occurring in Entry 5 of List II has reference on'y to establishment of municipal bodies, the word 'power' occurring in that Entry is in our opinion, wide, enough to include not only powers of municipal bodies but also limitation of such powers. It is a, well accepted rule of construction of Legislative Envies in thei Constitution that the language of such Entries should be given the widest scope of which their meaning is fairly capable of and each general word should, accordingly, be held, to extend to all ancillary and subsidiary matters which can fairly and reasonably be comprehended in it. So construe, the expression, 'power of municipal bodies' occurring in Entry 5 of List II includes limitation of their power to transfer their employees and conferment of such power of transfer on the State Government. Hence, S. 320 of the Act which confers on the Government power to transfer any officer or servant pf a, municipal body to another municipal body, cannot be regarded as being beyond the ambit of the words, 'constitution and powers of municipal bodies in Entry 5 of List II of the Seventh Schedule to the Constitution. We are unable to accept the; contention of Shri Shiva Shankar bhat that Section 320 of the Act is ultravires of the power of the state Legislature and hence void. We are unable to accept the; contention of Shri Shiva Shankar bhat that Section 320 of the Act is ultravires of the power of the state Legislature and hence void. ( 4 ) SHRI Shivas Shankar Bhat next contended that S. 71a of the Act confers power on a municipal council to employ such officers and servants as may be necessary to discharge its duties subject to the provisions of S. 365 and the rule made under S. 323, and that when a municipal council has the power to appoint such officers and servants, it would be incongruous that an outside authority, namely, the State Government, should have the power to transfer such officer or servant to another municipal council. Shri Shivashankar Bhat maintained that according to, the concept of the relationship of master and servant, the master cannot transfer his servant to another master and even if such transfer is permissible, it is the master and the master alone who can do it and that an outside authority who is not the master, cannot, interfere with the relationship between the master and the servant and transfer the servant to another master. ( 5 ) AS pointed out by the Supreme Court in Roshanlal Tendon v. Union of India and, AIR 1967 SC. 1899 though the origin of Government service is contractual and there is an offer and acceptance in every case of employment, once appointed to his post or office, the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Goverment. This statement of law is equally applicable to municipal employees, who are also public servants. The rights and obligations of municipal employees and their conditions of service are governed by the provisions of the Act and rules thereunder which override the normal incidents of the contractual relationship of master and servant. The non-obstante clause in S. 320 of the Act makes the provisions of that Section prevail over the other provisions of the Act. Though the municipal council employs an officer or official, S. 320 of the act confers on the Government the power to transfer him. Shri Shiva Shankar Bht has not been able to show any legal impediment for such a statutory provision. Though the municipal council employs an officer or official, S. 320 of the act confers on the Government the power to transfer him. Shri Shiva Shankar Bht has not been able to show any legal impediment for such a statutory provision. ( 6 ) IT was next contended by Shri Shivashankar Bhat that S. 320 of the act does not provide any guidelines as to how such power of the transfer should be exercised and that conferment of such unguided and uncontrolled power is constitutionally impermissible. ( 7 ) IT is true that S. 320 does not expressly set out any guidelines for the exercise of such wide powers of transfer. But it is implied that such power should be exercised in public interest. Periodical transfers of civil servants from place to place is the normal practice in that administration and such transfers are considered as being in public interest. The public interest provides the guide line. Moreover when the power to transfer under S. 320 is conferred on a high authority like the Government or the divisional Commissioner (to whom such power is delegated), the presumption is that such power will be exercised in public interest and reasonably and not arbitrarily. Hence, mere absence of express guide lines for exercise of such power, does not render such conferment of power bad. If such power is exercised in any particular case arbitrarily, capraciously, unreasonably, mala fide or for a collateral purpose, the exercise of such power in that particular case, will be bad and liable to be struck down by Courts. But the conferment of such power will not be struck down. ( 8 ) IN the present case, it has been explained in the statement of objections filed on behalf of the State Government that the state Government received complaints against the petitioners and that in view of the serious nature of such complaints the government considered it necessary in public interest to transfer them to other municipalities. There is no reason to disbelieve the ground stated by the Government for transfer of the petitioners. ( 9 ) ALL the contentions urged by Shri Shivashankar Bhat fail and we dismiss these petitions. ( 10 ) IN the circumstances, we direct the parties to bear their own costs. --- *** --- .