K. S. Srivastava v. State of U. P — 1982 DIGILAW 1149 (ALL)

JUDGMENT Satish Chandra, C.J. - The petitioners are employed in Civil Defence offices in the various cities of this State. They are paid employees of the Civil Defence office. They are working as head clerks, routine grade clerks, typists, storemen, etc. They are aggrieved by an order of their transfer from the original place of posting to a Civil Defence office in another city. The order of transfer was passed by the Director of Civil Defence, Lucknow. The Director of Civil Defence acted under R. 4 (3) of the U. P. Civil Defence (Ministerial Staff) Service Rules, 1982. 2. Though the order of transfer has in the writ petitions been challenged on a variety of grounds, Sri Shanti Swarup Bhatnagar, learned counsel appearing for the petitioners, at the hearing confined his attack to only one ground. He submitted that the petitioners in matters of condition of service like transfer are under the control of the Central Government. They are. in substance, Central Government employees. The Government of Uttar Pradesh had no jurisdiction to frame rules under Article 309 of the Constitution to govern the service conditions of the employees of the civil defence office. The petitioners are governed by the Civil Defence Act No. 27 of 1968 which is an enactment by Parliament. The conditions of service of the petitioners are by S. 9 (2) (b) of that Act to be governed by regulations made by the Central Government. 3. The case of the State Government is that the petitioners are not members of the Civil Defence Corps which is contemplated by the Civil Defence Act of 1968. They are not governed by the provisions of that Act. The State Government in order to maintain the Civil Defence Corps contemplated by the 1968 Act in an efficient manner has established Civil Defence offices in various important cities of the State and in order to facilitate their functioning they have employed certain categories of ministerial staff. These ministerial staff like clerks, stenographers, storemen, etc. were recruited and appointed by the State Government. Their conditions of service are governed by the U. P. Civil Defence (Ministerial Staff) Service Rules, 1982. Under it, the Director had power to transfer the members of the ministerial cadre from one Civil Defence unit to another. 4. Thus two principal questions arise. These ministerial staff like clerks, stenographers, storemen, etc. were recruited and appointed by the State Government. Their conditions of service are governed by the U. P. Civil Defence (Ministerial Staff) Service Rules, 1982. Under it, the Director had power to transfer the members of the ministerial cadre from one Civil Defence unit to another. 4. Thus two principal questions arise. Firstly, whether the petitioners are members of the Civil Defence Corps contemplated by the Civil Defence Act of 1968 so that their conditions of service may be governed by the regulations framed by the Central Government under S. 9 of that Act. In the next place, even if they are governed by the Civil Defence Act, 1968, whether the State Government or Central Government had the power to lay down the conditions of service, especially the power to transfer. 5. The Civil Defence Act, 1968 defines `Civil Defence Corps' to mean the corps formed wholly or mainly to meet the needs of Civil Defence and includes an organisation deemed to be a corps under the proviso to sub-sec. (1) of S. 4. section 4 (1) states that the State Government may constitute for any area within the State, a body of persons to be called the Civil Defence Corps (hereinafter referred to as the `Corps') and may appoint a person, not being, in its opinion, below the rank of the District Magistrate (to be known as the `Controller') to command such corps. 6. Under sub-sec. (2) the State Government may appoint a Director of Civil Defence to co-ordinate the activities of Controllers. S. 5 (1) contemplates that the State Government may appoint as members of the Corps persons who are fit and willing to serve as such. Under sub-sec. (2) of S. 5 every person appointed to be a member of the Corps shall be given a certificate of membership in such form as may be prescribed. S. 6 provides for dismissal of members of the Corps by the Controller. S. 7 gives to the members of the corps a right of appeal against the order of dismissal passed by the Controller to the State Government. S. 6 provides for dismissal of members of the Corps by the Controller. S. 7 gives to the members of the corps a right of appeal against the order of dismissal passed by the Controller to the State Government. S. 8 (1) says that the members of the Corps shall perform such functions in relation to the carrying out of measures for Civil Defence as may be assigned to them by the Rules framed under the Act or by any other law for the time being in force. Under sub-sec. (2) of S. 8, the State Government or the Controller may, by order, call out a member of the Corps for training or for discharging such functions in relation to the carrying out of measures for Civil Defence as may be specified in such order. S. 9 then authorises the Central Government to make regulations for various purposes to regulate the organization, conditions of service, accoutrement of members of any or all of the Corps. 7. This Act, therefore, contemplates that every person appointed to be a member of the Corps shall be given a certificate of membership vide S. 5 (2) and that the members of the Corps can be called upon to undergo training for discharging the functions in relation to the carrying out of measures for Civil Defence. They are required to perform such functions as may be assigned to them by rules or by any other law. 8. In exercise of the powers conferred by S. 3 of the Act, the Central Government made the Civil Defence Rules, 1968. These rules deal with control of light and sounds, measures for dealing with outbreaks of fire, camouflage, keeping dangerous articles and substances, evacuation of areas where an attack is apprehended, accommodation of evacuated persons, maintenance of water supply, requiring local authorities to take precautionary measures, protection of major ports and their environment against fire, protection of factories and mines, precaution against hostile attack, air raid shelters etc. R. 19 deals with civil defence exercises. It authorises the Central Government or the State Government by notified order to carry out the Civil Defence exercises in such areas and during such period as may be specified in the order. 9. These rules make it obvious that the members of the Civil Defence Corps are appointed by the State Government. They are given a certificate of membership. It authorises the Central Government or the State Government by notified order to carry out the Civil Defence exercises in such areas and during such period as may be specified in the order. 9. These rules make it obvious that the members of the Civil Defence Corps are appointed by the State Government. They are given a certificate of membership. They are accorded suitable training for discharging functions in relation to the measures of Civil Defence and their main duty is to perform such functions in relation to the carrying out of measures for Civil Defence as may be assigned to them. The nature of Civil Defence functions is indicated by the rules as also by the provisions of S. 3 of the Act which elaborates in detail the various matters for which rules may be framed. 10. In exercise of the powers conferred by S. 9 of the Act, the Central Government made the Civil Defence Regulations, 1968. Under Regulation 3 which is headed as `eligibility', the requirement is that an applicant shall have passed at least the primary standard, that is to say, the fourth class, and this condition may be relaxed by the Controller in his discretion. Another requirement is that he should be physically fit and mentally alert. Under Regulation 4 (2), every candidate shall be required to produce a certificate from his employer agreeing to spare him, when so required. At the time of enrolment, the candidate who has been appointed as member of the Corps is required to make an oath or affirmation in accordance with Form B. Regulation 8 is headed as `Conditions of Service'. It provides that the members of the Corps shall ordinarily serve in a voluntary and honorary capacity provided that the State Government may, by order, authorise payment of duty allowance to a member of the Corps, when called on duty. The said regulation contemplates that the Central Government may declare any appointment or class of appointments as paid appointments. It goes on to provide that a person appointed on the basis of payment shall be entitled to such conditions of service as regards pay, leave and other benefits as the State Government may, by order, prescribe. 11. Regulation 9 is headed as `duty'. It says : "9. It goes on to provide that a person appointed on the basis of payment shall be entitled to such conditions of service as regards pay, leave and other benefits as the State Government may, by order, prescribe. 11. Regulation 9 is headed as `duty'. It says : "9. Duty - Members of the Corps shall be called on duty : (i) for training; (ii) for practice or exercises; (iii) to perform the duties assigned to them by order under these regulations or under any other law for the time being in force, for the protection of persons and property against hostile attack." 12. Regulation 11 provides that a member of the Corps shall, when on duty, wear such uniform and badges of rank and carry such equipment as may be prescribed by the Controller. 13. The Civil Defence Act contemplates the constitution of a Civil Defence Corps. It's members are to be given training and made to practise and do exercises with a view to protect persons and property against hostile attack. Obviously, the training and exercises are in relation to matters prescribed in the rules which have been indicated above like measures dealing with outbreaks of fire, camouflage, evacuation of areas, maintenance of water supply at the time of attack, protection against hostile attack, etc. 14. The members of this Corps can be any citizen, It is noticeable that the educational eligibility is that a person must have passed at least the primary standard, i.e., fourth class. This condition can also be relaxed. An uneducated person can also be a member of the Corps. The members of the Corps are normally to serve in an honorary and voluntary capacity. Their duties are specified. They are not on regular duty. The State Government may, however, allow payment of duty allowance to the members of the Corps, when called on duty. They are called on duty when a hostile attack is apprehended or takes place. 15. The petitioners claim to be members of the Civil Defence Corps. They have not satisfied that they were given any certificate of membership which is an essential requisite under S. 5 (2) of the Act. They are highly educated and regularly paid employees. They are called on duty when a hostile attack is apprehended or takes place. 15. The petitioners claim to be members of the Civil Defence Corps. They have not satisfied that they were given any certificate of membership which is an essential requisite under S. 5 (2) of the Act. They are highly educated and regularly paid employees. They work day to day, the year round as routine grade clerks, clerks, typists, head clerks, storemen attached to the Civil Defence office; there is not even a whisper in the writ petition that they have undergone any training or exercise or practice in order to do any function in relation to carrying out of measures for Civil Defence. Under S. 8, the functions to be performed by members of the Corps are in relation to the carrying out a measures for Civil Defence which are elaborated in S. 3 and the rules. Neither S. 3 nor any other provision of the act or of the rules framed thereunder contemplate or provide for the supporting staff or the staff engaged to maintain the Civil Defence offices in order to carry out the ministerial duties or peons, clerks, storemen or typists, etc. Such subsidiary or ministerial staff may or may not be appointed. That is a matter which has not been dealt with by the Civil Defence Act at all. 16. We are hence not satisfied that the petitioners have been able to establish their claim that they are members of the Corps under the Civil Defence Act, 1968. For that reason they cannot say that they are Central Government employees and that the Central Government alone can frame rules for their conditions of service. 17. The provisions of the Civil Defence Act, 1968 mentioned above show that it is an enactment primarily for making provision for Civil Defence in the various States. Sub-sec. (3) of S. 1 of the Act provides that the Act will come into force in a State or part thereof on such date as the Central Government may appoint and different dates may be appointed for different States or parts thereof. Though the Act extends to the whole of India it is not in operation in the entire country by itself. Though the Act extends to the whole of India it is not in operation in the entire country by itself. It comes into force in specified States by notification of the Central Government, all the functions in relation to the Civil Defence Corps have been delegated to the State Government or its offices. The Central Government, has very little to do in regard to Civil Defence. In substance, the Act contemplates the creation of a Civil Defence Corps primarily to provide for Civil Defence in the various States. It is, therefore, an enactment which deals with or is connected with the affairs of a State. 18. Under Article 309 of the Constitution, the appropriate Legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of the State. Under the proviso, it is competent to, inter alia, for the Governor of the State to make rules regulating the recruitment, and the conditions of service of persons appointed to services and posts in connection with the affairs of the State. 19. As already indicated above, Civil Defence in a State has, by the Civil Defence Act, 1968, been designated as a matter or topic which is connected with the affairs of the States. All the provisions of the Civil Defence Act apply only within the State to which it is extended. It authorises the State Governments to make various kinds of orders and appointments, etc. under it. In our opinion, it was competent for the Governor of this State to establish offices for the purposes of carrying out the functions contemplated by the Civil Defence Act and in order to efficiently man such offices to create services and posts for them. The U. P. Civil Defence (Ministerial Staff) Service Rules, 1982 were hence within the rule making power of the Government. Under sub-rule (3) of R. 4 of these rules, the Director was authorised to transfer any member of the ministerial cadre from one Civil Defence unit to another. The impugned orders of transfer passed by the Director were hence within his jurisdiction and valid. 20. Mr. Bhatnagar submitted that Civil Defence is a legislative topic mentioned in List I of the Seventh Schedule of the Constitution. Hence Parliament had exclusive jurisdiction to legislate in respect of it. The impugned orders of transfer passed by the Director were hence within his jurisdiction and valid. 20. Mr. Bhatnagar submitted that Civil Defence is a legislative topic mentioned in List I of the Seventh Schedule of the Constitution. Hence Parliament had exclusive jurisdiction to legislate in respect of it. It was not open to Parliament to delegate any power or function in relation to Civil Defence to a State Government or its officers. The argument has no substance. Article 258 (2) of the Constitution provides : "(2) A law made by Parliament which applies in any State may, notwithstanding that it. relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof." This provision is a complete answer to the submission. 21. We find no merit in any of these petitions. They are ail dismissed with costs.