HIRJIBHAI LAVJIBHAI LADANI v. UPLETA NAGAR PALIKA — 1983 DIGILAW 228 (GUJ)

A. M. AHMADI, J. ( 1 ) THE petitioner who was initially appointed as a Junior Clerk in the primary school run by the Shikshan Samiti of Upleta Nagarpalika was promoted as Head-clerk-cum-Accountant pursuant to the recommendations of the staff selection committee. The petitioner was in due course confirmed as Head-clerk-cum-Accountant by the Administrative Officer Nagar Prathmik Shikshan Samiti Upleta by his order dated 3/10/1972. The President of the Nagarpalika by his order dated 15/04/1978 transferred the petitioner to the Accounts Branch of the Municipality. The petitioner has challenged this transfer order by this petition principally on the ground that the President of the Nagarpalika has no power or authority to transfer him since the said power vests in the Administrative Officer alone The petitioner therefore prays that appropriate writ be issued against the respondents for quashing and setting aside the said order dated 15/04/1978 whereby he is transferred to the Accounts Branch of the Municipality. ( 2 ) ON behalf of the respondents no affidavit-in-reply is filed. Mr. S. M. Shah the learned advocate for the respondent no-1 stated at the Bar when the petition was called on for hearing that he was instructed to inform the court that the Nagarpalika has no strong views so far as the right to transfer the petitioner is concerned and it would abide by such order as the court may make in the light of the provisions of the Bombay Primary Education Act 1947 (hereinafter referred to as the Act ). ( 3 ) THE Act was enacted to provide for compulsory primary education and to make better provision for the management and control of primary education in the state. The Sections of the Act are divided into XI Chapters. sec. 2 defines various expressions used in the Act. We may notice a few of them with which we are concerned. sec. 2 (1) defines Administrative Officer as an officer appointed under sec. 21 or 22. Sec. 21 provides that every school board shall have an Administrative Officer who shall be the chief executive officer of the board. If further provides that the Administrative Officer shall be appointed by and shall be a servant of the State Government he shall draw his pay and allowances from the State revenues. 21 or 22. Sec. 21 provides that every school board shall have an Administrative Officer who shall be the chief executive officer of the board. If further provides that the Administrative Officer shall be appointed by and shall be a servant of the State Government he shall draw his pay and allowances from the State revenues. Sec. 22 which begins with a non-obstante clause enables the State Government to delegate the power to appoint an Administrative Officer to an authorized municipality. The Administrative Officer appointed by the authorised municipality shall be the servant of the authorized municipality and shall draw his pay allowance etc. from its primary education fund. It is clear from the above provisions that if an Administrative Officer is appointed under sec. 21 of the Act he shall be a servant of the State Government but if he is appointed by the authorized municipality to which the State Government has by notification delegated its power to make appointment he shall be the servant of the authorized municipality. Sec. 2 (6)of the Act defines an Authorized Municipality to be a municipality which is authorized by the State Government under sec. 16 (1) to control all approved schools within its area. The expression Approved school as defined by sec. 2 (2) of the Act means a primary school maintained by the State Government or by a School Board or by an authorized municipality or which is for the time being recognized as such by a School Board or by the State Government or by an Officer authorized by it in this behalf. sec. 16 (1) is an enabling provision which empowers the State Government to authorise any municipality constituted under the Bombay District Municipal Act 1901 or under the Bombay Municipal Boroughs Act 1925 or under any other corresponding law to control all approved schools within its area. Sec. 17 enumerates the duties and functions of the authorized municipality. It is therefore clear that the municipality can control all approved schools within its area if the State Government has authorised it to do so under sec. 16 (1) of the Act. It may be stated that there is no dispute that the Upleta Nagarpalika is an authorized municipality. ( 4 ) CHAPTER II deals with the constitution of the District and Municipal School Boards. District School Board means a School Board constituted for a district under sec. 3. 16 (1) of the Act. It may be stated that there is no dispute that the Upleta Nagarpalika is an authorized municipality. ( 4 ) CHAPTER II deals with the constitution of the District and Municipal School Boards. District School Board means a School Board constituted for a district under sec. 3. Municipal School Board means a School Board constituted for the area of an authorised municipality under sec. 3. Sec. 3 provides for constitution of a District School Board as well as a Municipal School Board for each area of an authorised municipality. Sec. 4 (1) states that each School Board shall consist of members not less than 12 and not more than 16 in number. Under sec. 10 every School Board must elect a chairman an. 1 a vice-chairman from amongst its members. Chapter III sets out the power duties and functions of the District School Boards authorised municipalities and Municipal School Boards. Sec. 16 (1) to which a reference has been made earlier empowers the State Government to authorise any municipality to control all approved schools within its area. Sec. 17 sets out the duties and functions of an authorised municipality. Sec. 18 enumerates the powers and functions of Municipal School Boards. This indicates the nature of the control to be exercised by the authorised municipality or the Municipal School Board as the case may be. ( 5 ) THE administrative machinery has been provided for in Chapter- V of the Act. Sec. 20 provides that every District School Board with the approval of the State Government and every authorized municipality shall maintain an adequate staff of Assistant Administrative Officers Supervisors Attendance Officers clerks primary teachers and inferior servants and other staff (including engineering staff) as in the opinion of the State Government be necessary for the administration management and control of approved schools within its area. The Staff so maintained shall be servants of the District School Board or the authorized municipality as the case may be. Their salary allowances etc. shall be paid from the primary education fund. The State Government is empowered to prescribe the duties to be performed by the staff maintained under the said provision. Secs. 21 and 22 then provide for the appointment of an Administrative Officer to which reference has been made earlier. Sec. 28 provides for the creation of a staff selection committee with which we are not concerned. The State Government is empowered to prescribe the duties to be performed by the staff maintained under the said provision. Secs. 21 and 22 then provide for the appointment of an Administrative Officer to which reference has been made earlier. Sec. 28 provides for the creation of a staff selection committee with which we are not concerned. It may suffice to say that the appointments to the posts referred to in sec. 20 have to be made by the staff selection committee of which the administrative Officer is the Secretary. That takes me to sub-sec. (1) of sec. 24 on which reliance was placed by Mr. Nanavati for the petitioner. That sub-section reads as under:24 The Administrative Officer shall have power subject to such general instructions as may be issued from time to time by the Director to promote transfer and take all disciplinary action (including removal or dismissal) against the staff maintained under sec. 20. Plainly the power to transfer a member of the staff maintained under sec. 80 vests in the administrative Officer by virtue of this sub-sec. Sub-sec. (2) of sec. 24 next provides that if any person is aggrieved by any order passed under sub-sec. (1) involving disciplinary action he may appeal to a Tribunal consisting of the Chairman of the School Board and the Education Inspector of the district. If there is any difference of opinion between the said two members of the Tribunal provision is made for reference of appeal to the Director of Education whose decision is made final. The power to examine the record of any order made by the Administrative Officer or the Tribunal or the Director is conferred on the State Government under sub-sec. (4) of sec. 24 of the Act. In other words the entire machinery in regard to taking of disciplinary action against the staff maintained under sec. 20 has been set up under sec. 24 of the Act. ( 6 ) SEC. 44 of the Act provides for the maintenance of the primary education fund by every District School Board and authorized municipality. The fund shall consist of various items in clauses (a) to (g) of sec. 44 (2) of the Act. Chapter IX deals with control and sec. 24 of the Act. ( 6 ) SEC. 44 of the Act provides for the maintenance of the primary education fund by every District School Board and authorized municipality. The fund shall consist of various items in clauses (a) to (g) of sec. 44 (2) of the Act. Chapter IX deals with control and sec. 48 lays down that the State Government may appoint such officers (including inspecting officers) as it may deem necessary for the purpose of giving effect to the provisions of the Act. The nature of the power to be exercised by the State Government has been indicated in the subsequent sections. The last provision to which my attention was invited is sec. 65 which provides that notwithstanding anything to the contrary contained in the provisions relating to primary education in the Bombay District Municipal Act 1901 the Bombay Local Boards Act 1923 and the Bombay Municipal Boroughs Act 1925 the provisions of the Act shall have effect. This is the scheme of the Act. ( 7 ) IT is an admitted fact that at the relevant point of time the petitioner was serving as a Head-clerk-cum-Accountant in the primary school managed by the Nagar Prathmik Shikshan Samiti of Upleta Nagarpalika. He was transferred under the impugned order to the Account Branch of the Nagarpalika. The petitioner contends that since he belongs to the staff of the primary school the President of the Nagarpalika had no right or authority to transfer him as a member of the staff belonging to the municipality by posting him in the Accounts Branch of the municipality. In support of his contention he strongly relies on the fact that he was appointed as a Head-clerk-cum-Accoun- on being selected by the staff selection committee appointed under sec. 23 of the Act. On his selection he was given appointment by the Administrative Officer by his order dated 3/10/1972. It is his say that in view of his appointment by the Administrative Officer pursuant to his selection by the staff selection committee the President of the Nagarpalika had no right or authority to transfer him to the Accounts Branch of the municipality as such a right was conferred by the statute on the Administrative Officer alone under sub-sec. (1) of sec. 24 of the Act. (1) of sec. 24 of the Act. That sub-section in unmistakable language states that the Administrative Officer shall have the power subject to such general instructions as may be issued by the Director to interalia transfer any member of the staff maintained under sec. 20. It has not disputed that the petitioner was a member of the staff maintained under sec. 20and therefore ex-facie the power to transfer him was conferred upon Administrative officer alone by virtue of sub-sec. (1) of sec. 24 of the Act. My attention has not been invited to any provision in the Act which specifically confers the power of transfer of a member of the staff maintained under sec. 20 on the President of the Nagar palika. The power to take disciplinary action against a member of the staff maintained under sec. 20 is also conferred on the Administrative Officer. An appeal is provided to the Tribunal against any order involving disciplinary action. The State Government has been conferred with the general power to call for and examine the record of any order made by the Administrative Officer or the Tribunal and in the event of a dis-agreement between the members of the Tribunal the Director against any member of the staff referred to in sub-sec. (1) of sec. 24 of the Act. These provisions make it amply clear that a separate machinery has been set up under sec. 24 for taking disciplinary action against the members of the staff maintained under sec 20 sec. 24 (1) specifically confers the power of transfer on the administrative officer and in the absence of any provision to the contrary there can be no doubt that the power can be exercised by the said officer alone alone and by none else. If that be so it appears that the president of the Nagarpalika has no power to transfer the petitioner from the primary school to the Accounts Branch of the Municipality. The power to transfer is specifically conferred on the Administrative officer under sec. 24 (1) of the Act. My attention has not been drawn to any provision under the Municipalities Act pointing out that any such power has been conferred upon the President of the Nagarpalika. The power to transfer is specifically conferred on the Administrative officer under sec. 24 (1) of the Act. My attention has not been drawn to any provision under the Municipalities Act pointing out that any such power has been conferred upon the President of the Nagarpalika. ( 8 ) IN view of the above the impugned order of transfer must be quashed and set aside since it is not shown that under the provisions of the Act the President of the Nagarpalika was competent to order the petitioners transfer in the face of the power having been specifically conferred on the Administrative Officer under sub-sec. (1) of sec. 24 of the Act. Rule is made absolute accordingly. No order as to costs. Petition allowed. .