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Rajasthan High Court · body

1987 DIGILAW 741 (RAJ)

Basudeo v. U. I. T. Bharatpur

1987-09-17

M.B.SHARMA

body1987
JUDGMENT 1. - An important question is involved in this revision petition as to whether the State Government has power to transfer an employee from one UIT to the other UIT? 2. The present revision petition is directed against the order dated February 18, 1983 of the learned District Judge, Bharatpur allowing the appeal filed by the UIT Bharatpur non-petitioner No.1 which appeal had been filed against the order dated January 13, 1983 of the Munsif and Judicial Magistrate, Bharatpur in civil misc. case No. 293/1982. It arises in the following circumstances: 3. Basudeo Prasad. the petitioner, was appointed by the Chairman, UIT Bharatpur, non-petitioner No. 2, as a Lower Division Clerk, under his order dated December 24,1966. Since then the petitioner was working as L.D.C. in the UIT Bharatpur. UIT Bharatpur under its order dated September 22, 1970 had fixed the petitioner in the pay scale of 110-5-160-8-200-10-230 and he was to get annual grade increments on 1st September of each year. When a domestic inquiry was pending against him the Chairman of the UIT Bharatpur under his DO letter wrote to the Government that the petitioner should be transferred from Bharatpur to some other U.I.T. On the aforesaid letter under its order dated November 19, 1982, the petitioner was transferred by the respondent No. 2 from UIT, Bharatpur to UIT Udaipur and the said transfer order was received by the petitioner on November 30,1982. The petitioner filed a suit challenging the transfer order on the ground that the State Government has no power to transfer an employee of one UIT to the other UIT. In the suit an application under order 39 Rules 1 and 2 Civil Procedure Code was tiled and the learned trial court under its order dated January 13, 1983 allowed the application and restrained the UIT and the State Government from transferring the petitioner from UIT Bharatpur to any other place. 4. An appeal was filed against the aforesaid order by the non-petitioners and the learned District Judge set aside the order of the learned trial court and the application for injunction was dismissed. 5. 4. An appeal was filed against the aforesaid order by the non-petitioners and the learned District Judge set aside the order of the learned trial court and the application for injunction was dismissed. 5. The petitioner has preferred the revision petition in this Court and this Court did not think it proper to issue any injunction order and consequently the petitioner might have been relieved and it is the case of the non-petitioner UIT Bharatpur that the petitioner was relieved from his dates to join his new place of posting. 6. I will revert to the question posed at the beginning of this order as to whether the State Government has any power to transfer an employee from the UIT to another UIT? 7. A look at the Provisions of the Rajasthan Urban Improvement Trust Rules, 1961 (for short the Rules) will show that there is no power vesting in the State Government to transfer an employee of one UIT to another UIT, and the learned District Judge has observed that the State Government has ultimate control over the appointments of the employees of the UIT and it has the rower to transfer an employee of one UIT to the other UIT. In coming to the said conclusion, the learned District Judge has placed reliance on Mohanlal Jain v. State of Rajasthan, AIR 1959 Rajasthan 203, Rajasthan Municipalities Act and Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963. I will have the occasion to deal with this aspect of the matter at the later stage of this order nut presently I will refer to certain provisions of the Act and the Rules in order to see what are the powers of the State Government. I will have the occasion to deal with this aspect of the matter at the later stage of this order nut presently I will refer to certain provisions of the Act and the Rules in order to see what are the powers of the State Government. Section 8 of the Rajasthan Urban Improvement Act, 1959 (for short, the Act) vests power in the State Government by notification in the official gazette to establish for the purpose of carrying out improvement of any area in the State whether a master plan in respect thereof has or has not been prepared, a board of Trustees to be called the Improvement Trust of the place where its principal office is situated (for short the Trust) and under sub-section (2) of Section 8 of the Act every such Trust shall be a body corporate by the aforesaid name having perpetual succession and a common seal with powers to acquire, hold and dispose of property both movable and immovable and to contract and shall by the said name sue and be sued. Chapter IV of the Act deals with proceedings of the Trust and Committee and Section 24 of that chapter provides that subject to any general or special direction issued by the State Government. Every Trust shall from time to time propose for the sanction of the State Govt. the strength of officers and servants to be appointed, setting forth the conditions of service and emoluments of each officer or servant. The State Government may sanction such proposal with or without amendment and no appointment shall be made otherwise than in accordance with such sanction. Under the proviso to Section 24, the Trust may subject as aforesaid direct that one person shall be appointed to discharge the duties of any two or more offices. In exercise of the aforesaid power the State Govt. issued notifications from time to time prescribing the pay-scales for post of Secretary, UIT, in Rajasthan Section 25 deals with powers of appointment etc. In exercise of the aforesaid power the State Govt. issued notifications from time to time prescribing the pay-scales for post of Secretary, UIT, in Rajasthan Section 25 deals with powers of appointment etc. and according to it, subject to the provision of Section 24 and to any rules for the time being in force, the power of appointing and granting leaves to officers and servants of the Trust and censuring, reducing, suspending or dismissing them for misconduct and dispensing with their services for any reason other than misconduct shall be vested (a) in the case of officers and servants drawing such monthly salary as may be specified by the State Govt. for each Trust, in the Chairman and (b) in other cases, in the Trust. Under the first proviso to Section 25 in the case of Government servants whose services are kept to the Trust the power of granting leave only will so vest and the other powers specified in section 25 will be exercisable by the State Government or by an appropriate authority of the State Government upon a complaint made by Trust in that behalf or otherwise. Under the second proviso the officers may be appointed to administrative and technical posts in the Trust by the State Government either from amongst staff belonging posts in the Trust with nomenclature and duties corresponding to posts in a department of the Government from which promotions to similar posts are made or from amongst officers holding post encadred in the Rajasthan Municipal Service or the State services and the strength of these services shall stand increased accordingly if necessary. Section 26 of the Act vista power of control in the Chairman and provides that the Chairman shall exercise supervisory control over the acts and proceedings of all officers and servants, of the Trust and subject to the foregoing section, shall dispose of all questions relating to the service of the said officers and servants and their pay, privileges and allowances. Under Section 27 the Chairman may by general or special order in writing delegate to any officer of the Trust any of the powers, duties or functions under the Act or under the rules made thereunder except the power to preside over the meetings of the Trust. Under Section 27 the Chairman may by general or special order in writing delegate to any officer of the Trust any of the powers, duties or functions under the Act or under the rules made thereunder except the power to preside over the meetings of the Trust. The exercise or discharge by any officer of any powers, duties or functions delegated under sub-section (1) of Section 27 of the Act shall be subject to such conditions and limitations if any as may be specified in the said order and also to control and revision by the Chairman. Section 74 of the Act vests powers in the State Government to make rules. Under sub-section (1) thereof the State Government may make rules consistent with the Act for the purposes mentioned in clause (a) to (p). The State Government in exercise of its powers conferred by sub-section (d) of Section 74 of the Act has made Rules and even a cursory reading and a glance through those Rules will show that no rule has been framed laying down the service conditions of the employees of the Trust. Under chapter XIV of the Rajasthan Improvement Trust Rules, 1961, rules have been framed for miscellaneous matters and under rule 144 thereof provisions have been made to give effect to the provisions of Section 74 (a) (c) of the Act. Under rule 144 all questions connected with the appointment or dismissal of officers or servants of the Trust appointed other than officers requiring professional skill, not below the rank of Assistant Engineer, shall be referred to the State Government for decline. In respect of other officers such power has been vested in the Trust. 8. The relevant provisions of the Act and the Rules have been referred to above. It can be said that there is no provision either in the Act or in the Rules vesting any power of transfer of an employee of one UIT to the other UIT. As already stated earlier, under Section 74 (1) (c) of the Act the State Government has power to make the rules as to the conditions on which officers and servants of the Trust appointed to offices requiring professional skill may be appointed, suspended or dismissed. As already stated rule 144 has been framed to give effect to the provisions of Section 74 (1) (c) of the Act. As already stated rule 144 has been framed to give effect to the provisions of Section 74 (1) (c) of the Act. There is no other rule vesting the power in the State Government to decide the questions concerned with the appointment, punishment or dismissal of the officers and servants of the Trust. Rule 144 rather makes it clear that in respect of other officers i.e. of the servants of the Trust appointed to office requiring professional skill shall vest in the Trust. Merely because under Section 24 of the Act the State Government has power to fix strength. salaries etc. of the staff, it cannot be said that the State Government has over all control and can transfer one employee of the Trust to the other Trust. Under Section 25 of the Act, as already stated earlier, the power of censure, reducing, suspension and dismissal of the servants of the Trust for misconduct and dispensing with the services for any other reason other misconduct, so far as the officers who are drawing such monthly salary as may be specified by the State Government for each Trust vests in the Chairman and in other cases in the Trust concerned. The scheme of the Act and the Rules will show that the State Government has no power to transfer an employee of one UIT to the other UIT. Learned District Judge in the impugned order has said that the powers of the Chairman of the Trust under Section 25 of the Act are subject to over all control of the State Government under Section 24 of the Act. He has also said that the State Government has powers to make rules on which the officers are appointed in the Trusts. The learned District Judge has not referred to any of the clauses of Section 74 (1) of the Act under which the such powers is vested in the State Govt. and as already stated in the earlier part of this judgment such a power is vested under section 74 (1) (c) in respect of persons appointed to offices requiring professional skill. He concluded that because the powers of the Chairman to make appointment under Section 25 of the Act are subject to the over all powers of the State Government under Section 24 of the Act. He concluded that because the powers of the Chairman to make appointment under Section 25 of the Act are subject to the over all powers of the State Government under Section 24 of the Act. In my opinion, this approach of the learned District Judge is not in accordance with law. As already stated earlier every trust is an autonomous body which is a body corporate, having perpetual succession and common seal and the servants of one Trust cannot be said to be the servants of other Trust and for that matter, in the service of the State Government. Therefore, in the absence of any rule or provision in the Act vesting any power in the State Government to transfer an employee of one UIT to another UIT, the State Government has no power to transfer a lower division clerk appointed by one UIT to the other UIT. Learned District Judge has placed reliance on the ease of Mohanlal Jain (supra) which was a ogee of Municipalities Act. Section 304(3) of the Municipalities Act provides for recruitment to posts in the Service. Under sub-section(1) thereof upon the creation and constitution of the service appointment to all posts therein shall subject to any rules under Section 287 and notwithstanding anything in the rules under section 88, be made in accordance with provisions of section 307-(a) by direct recruitment, (b) by promotion, of(c) by transfer and sub-section(2) of Section 304 of the Municipalities Act provides that the State Government shall lay down the terms and conditions on which appointment shall he made by transfer from a State service. Sub-section(3) of Section 304 provides that with the approval of the State Government and in conformity with such general or special derision as it may from time to time issue, any officer or servant of a board who is a member of the Service may be transferred to the service of the another board. Sub-section(3) of Section 304 provides that with the approval of the State Government and in conformity with such general or special derision as it may from time to time issue, any officer or servant of a board who is a member of the Service may be transferred to the service of the another board. Rule 38 of the Rajasthan Municipal (Subordinate and Ministerial) Service) Rules, 1961 provides that persons appointed to the service may be transferred from one Board to the other in the same grade and category when considered necessary for the efficiency of the service, and such transfer shall be made by the Director in case of transfer from one Board to the other in the same district and by the State Government in case of transfer from a Board in one district to a Board in another district. It will therefore be clear that under the Rajasthan Municipalities Act as well as Rajasthan Municipal (Subordinate and Ministerial) Service Rules, 1963 there are provisions vesting power in the State Government to transfer members of Service from one Board to another. No such power is vested in the State Government under either the provisions of the Act or the Rules. Therefore the case of Mohanlal (supra) is not applicable to the present case and the learned District Judge pressed it into service wrongly in taking the view that the State Government has power to transfer an employee of one UIT to another UIT. 9. It has been contended by Prahlad Singh learned counsel for the non. petitioners that after the transfer order was made, one Bhoop Singh has joined vice Basudeo, the petitioner who was relieved to join his post at Udaipur. Therefore, now there is no question of issuing any injunction. 10. This Court is not concerned as to what happened after the learned District Judge had vacated the injunction order. I have taken a view that there is no power vested in the State Government to transfer an employee from one UIT to an other UIT and the order of transfer is without jurisdiction. 11. The revision is allowed and the order of the learned District Judge is etc aside and that of the Munsif Magistrate is restored. No order as to costs.Revision allowed. *******