Mohan Lal Jain v. State of Rajasthan — 1979 DIGILAW 71 (RAJ)

G.M. LODHA J.—In this writ petition the principal contention of the petitioner is that he cannot be transferred from one Municipal Board in Rajasthan to the other Municipal Board, as is sought to be done by the order dated 10th August, 1978, issued by the Deputy Secretary to the Government of Rajasthan. The petitioner has been transferred from the post of LDC Todarai Singh to the post of LDC Nathdwara Municipal Board. 2. Notice was issued to the State Government. Mr. J.S. Rastogi, Government Advocate, pointed out that the transfers of the Municipal employees can be made under section 304 (3) read with Rules framed under section 297 and section 88 of the Rajasthan Municipalities Act. On 8th January, 1979, Mr. Dave appeared and he prayed for time to study the law on this point. 3. Today, Mr. Jain appearing for Mr. Dave submits that the appointing authority of the petitioner was the Municipal Board and, therefore, the State Government or its functionaries have got no powers to either frame rules or to transfer them. It is urged that under section 88 no such rules can be framed, and the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963 in terms make a mention of section 88 as the source of authority. 4. It is also submitted by Mr. Jain that by this transfer his client would be posted on a post where he would become junior, and it would result in demotion and consequently penal consequences. 5. I have heard the learned counsel for the parties. It is to be noted that section 304 of the Rajasthan Municipalities Act 1959, in terms permit the transfer under Clause 3 which is as under— "(3) With the approval of the State Government and in conformity with such general or special directions as it may be from time to time issue, any officer or servant or a board who, is a member of the service may be transferred to the service of another Board." 6. Section 297(i) again in terms authorises the State Government to frame rules for the service conditions of the Municipal employees. 7. Section 88 authorises the Board to make the rules which cannot be in-consistent with the rules framed by the State Government under section 297. 8. On a careful consideration of Secs. Section 297(i) again in terms authorises the State Government to frame rules for the service conditions of the Municipal employees. 7. Section 88 authorises the Board to make the rules which cannot be in-consistent with the rules framed by the State Government under section 297. 8. On a careful consideration of Secs. 88, 297 and 304 of the Rajasthan Municipalities Act, 1959, I am of the opinion that the State Government has got powers to frame rules for the transfers of the Municipal employees of the various Municipalities in Rajasthan. 9. It is to be noted that in the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 a mention has been made of section 88 and sec. 297, but the clause mentioned is sub-section (2) Cl. (b) of the Act No. 38 of 1959. Sub-section (2) (b) of section 297 read as under : "(2) In particular, and without prejudice to the generality of the foregoing power, the State Government may rules or orders— (b) for the regulation of all or any of the matters specified in clauses (b), (c), (e), (f), (g), and (h) of section 88." 10. Thus sub-clause (b) of sub-section (2) of section 297 authorises the State Government to frame rules for the regulation of all matters of section 88. Sec. 297 (i) in terms permits the State Government for framing rules for determining their service conditions. It is not without significance that by sec. 304 (c), the State Government has got further powers to lay down general or specific conditions for the transfer of the members of the service. 11. In view of the above provision of law, it is beyond doubt that the State Government has got powers to make rules, regulations or issue directions general or specific or issue transfer orders of the employee of the Municipal Board by virtue of the powers given to it by the legislature under section 304 independdently and again by virtue of the powers under various clauses of section 297 of the Rajasthan Municipalities Act, 1959. The State Government has got further powers to regulate the service condition on matters which are specified in Section 88 also. The State Government has got further powers to regulate the service condition on matters which are specified in Section 88 also. Section 297 (i) gives general powers to the State Government for framing the rules or orders for the purposes of carrying into effect the provisions of the Municipalities Act, 1959, and it is beyond doubt that the entire municipal administration of the State Govt. functions under the provisions of this Act. In view of section 304 read with sec. 297, 1 am of the opinion that there is no lack of authority in the State Government either to pass orders of transfer of the member of the service directly in individual cases, or to make rules for the same, as has been done in the form of the rules of 1963, including rules 38, or to issue general or special direction for the transfer. 12. The plenary powers of the State Government to make the provisions of section 304 and 297 have not been questioned, and there is no doubt about the competency of the legislature as the Municipal administration and its affairs is State subject. 13. The only point which has created some doubt or confusion is mention of section 88 mentioned in section 297(2){b) of the Act, in the rules. It is also established law that even on the assumption that a wrong sub-clause of sec. 297 has been mentioned, it would not affect the validity of the rules. 14. In Afzal Ullah vs. State of Uttar Pradesh (1) it was held that, a mere mention of wrong provision of law under which the bye-laws of the Municipality were framed was not sufficient to declare the law as invalid. The relevant portion contained in para 14 is as under— "It is true that the preamble to the bye-laws refers to Cls. A(a), (b) and (c) and J(d) of S. 298 and these clauses undoubtedly are inapplicable; but once it is shown that the impugned bye-laws are within the competence of the Municipality, the fact that the preamble to the bye-laws mentions clauses which are not relevant, would not affect the validity of the bye-law. The validity of the bye-law must be tested by reference to the question as to whether the Board had the power to make those bye-laws. The validity of the bye-law must be tested by reference to the question as to whether the Board had the power to make those bye-laws. If the power is otherwise established, the fact that the source of the power has been incorrectly or inaccurately indicated in the preamble to the bye-laws, would not make the bye-laws invalid." 15. Reliance was placed on P. Balakotaish vs. Union of India (2) for the above proposition. In H.L. Mehra vs. Union of India (3) the Supreme Court again held that mention of a wrong provision of a statute will not invalidate an order when it is within the powers of the authority. 16. The simple question which requires adjudication by this Court in this case is, therefore, whether the State Government could either itself transfer or frame the rules or issue directions, general or specific, for the transfer of the employee from one Municipal Board to other Municipal Board in the State of Rajasthan. I am firmly of the view that this power the State Government possesses, by virtue of sec. 304 read with section 297 of the Rajasthan Municipalities Act. Sec. 304 (3) and sec. 297 (1) and further sub-clause (i) of sub-section (2) of sec. 297 clinches the issue. The power being there, mere mention of wrong section or a sub-clause even on the assumption of submission being correct, is of no consequence whatsoever. The authority which the State Government gets is not by a mere mention of the draftsman of a particular sub-section, but the enactment of the Legislature as the sole authority is to be considered from the Act as such, and not the mention of a particular provision of that Act and the rule. Wrong mention of some of the provisions of the Act for the purposes of showing the authority is only a mistake which would not affect the basic authority or the competence of the State to make rules. That being so, the powers to transfer being there both under sec. 304(3) and also under the rules framed under sec. 297 of the Act, I am of the opinion that the impugned order is valid. 17. It has to be noted that the impugned order has been passed by the Deputy Secretary of the State Government and, therefore, it is the order of the State Government itself, and is covered by the provisions of sec. 297 of the Act, I am of the opinion that the impugned order is valid. 17. It has to be noted that the impugned order has been passed by the Deputy Secretary of the State Government and, therefore, it is the order of the State Government itself, and is covered by the provisions of sec. 304 (c), itself. The submissions of the learned counsel for the petitioner, therefore, cannot be accepted in so far as they relate to the challenge to the validity of the rules 38 of the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963. It is, therefore, held that the rule 38 of these rules is valid and intra vires. The State Government and its functionaries as provided in the Act and the Rules referred to above have got powers to transfer the Municipal employees from one Municipal Board to the other Municipal Board. 18. Mr. Jain further submitted that this transfer would result in demotion. This submission is devoid of any force in as much as the transfer of LDC has been made on the same post of LDC as per the impugned order and the consequence of demotion is imaginary and without any basis. 19. Mr. Jain also submitted that a few cases have been admitted on this point of Jodhpur and therefore this case should also be kept for consideration. It is not possible to say whether identical question was involved in some other cases; but even if that is so, since a notice was given to the Government and the respondents in this case have come up with specific defence of a statutory provision of the rules, it is in the interests of all that the validity of the law must be decided at the earliest, one way or the office. 20. My conclusions of the above decision are as follows : (i) Rules 38 of the Subordinate and Ministerial Service rules 1963 is valid and intravires. (ii) In matter of transfer of Municipal employees from one Municipal Board of office in Rajasthan, the State Government can frame rules, issue directions generally or particularly and even itself issue orders under section 304 (3) and section 297 of the Rajasthan Municipalities Act, 1959. (iii) Transfer of a Municipal employee simply from one Board to another in Rajasthan cannot be termed as demotion. (iv) The impugned order Ex. (iii) Transfer of a Municipal employee simply from one Board to another in Rajasthan cannot be termed as demotion. (iv) The impugned order Ex. V passed by the Deputy Secretary to the Government transferring the petitioner as LDC from Municipal Board, Todarai Singh to the Municipal Board, Nathdwara is valid. 21. The writ petition is therefore dismissed.