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2006 DIGILAW 260 (RAJ)

Amarchand Sharma v. State of Rajasthan

2006-01-25

R.S.CHAUHAN, S.N.JHA

body2006
Judgment 1. This writ petition has been filed for quashing the order dated 31.08.1990 transferring the petitioner from Municipal Board, Chomu to Municipal Board, Makrana. The petitioner has also challenged the validity of Sections 2 and 6 of the Rajasthan Municipalities (Amendment) Act, 1990 inserting Section 310-A in the Rajasthan Municipalities Act, 1959 as ultra vires the Constitution and the basic concept of Municipalities being autonomous bodies. 2. Case of the petitioner inter alia is that Rule 38 of the Rajasthan Municipal (Surbordinate and Ministerial Service) Rules, 1963 providing for transfer of an employee from one Board to another has been held to be ultra vires in the case of Chhagan Lal vs. State of Rajasthan, 1990 (1) RLR 95. Case of the respondent is that Rule 38 was struck down because there was no provision in the Act empowering the State Government to frame rules in the matter of conditions of service, including transfer of employees from one Board to another, but by the 1990 amendment, Section 310-A was inserted in the Act in terms of which a member of the subordinate service, ministerial service or Class-IV service may be transferred by the State Government from the service of one Board to the service of another Board in accordance with rules made under Section 297. Thus, in view of Section 310-A, the power of the State Government to transfer an employee from one Board to another cannot be doubted. In support of the contention, the respondents have placed reliance on the case of Ramesh Chand Kachhawaha vs. State of Rajasthan & Ors., 1994 (1) WLC 702 (Raj.). 3. We have perused the Judgment in Ramesh Chand Kachhawaha. Prima facie we are of the view that the decision runs contra to the law laid down by the Supreme Court in General Officer Commanding-In-Chief vs. Dr. Subhash Chandra Yadav, 1988 (2) SCC 351 = AIR 1988 SC 876 . It was a case of transfer from one Cantonment Board to another. The respondent had challenged his transfer which had purportedly been made under Rule 5(c) of the Cantonment Board Servants Rules, 1937. The Supreme Court noticed that Section 280 of the Cantonment Act as it originally stood conferred power on the Central Government to make rules with respect to “the appointment, control, supervision, suspension, removal, dismissal and punishment of servants of Board”. The Supreme Court noticed that Section 280 of the Cantonment Act as it originally stood conferred power on the Central Government to make rules with respect to “the appointment, control, supervision, suspension, removal, dismissal and punishment of servants of Board”. The section did not confer power to frame rule regarding condition of service includes transfer of employees. By amendment vide Act 15 of 1983, Clause (c) of Sub-section (2) of Section 280 was amended as follows:-“the tenure of office, salaries and allowances, provident funds, pensions gratuities, leave of absence and other conditions of service of servants of Board.” Thus, the defect which inhered in Rule 5(c) stood cured by amendment in Section (2)(c) of the Act. The Supreme Court took the view, firstly, that the amendment in the Act had come later and it did not inject life in the rule which was void ab initio. Secondly, while Rule 5(c) of the Rules did empower the Government to transfer the employee from one Board to another, in view of the fact that the Cantonment Board Service is not a centralised service, and it is an autonomous body, there cannot be inter-board transfer and thus, the Central Government cannot frame fresh rules either. It will be useful to quote the relevant observations contained Paras 19 and 20 of the Judgment as under:- “19. The question, however, is whether the Central Government is entitled to frame rules for transfer of the employees of the Cantonment Boards under the substituted Clause (c) of Sub-section (2) of Section 280 of the Cantonments Act. It is true that under Clause (c), as it now stands, the Central Government can frame rules pertaining to conditions of service of the Cantonment Board employees. But in our opinion, even in spite of substituted Clause (c), the Central Government will not be entitled to frame rules for transfer of an employee from one Cantonment Board to another within the State for the reasons stated already, namely (1) the Cantonment Board are autonomous bodies; (2) the service under the Cantonment Board is neither a centralised service nor is it a service at the State level; and (3) any such transfer of an employee will mean termination of service of the employee in the Cantonment Board from where he is transferred and a fresh appointment by the Cantonment Board which he joins on such transfer. 20. 20. So long as the Cantonment Board service is not made a centralised service or at least a State level service, there can be no transfer from one Cantonment Board to another Cantonment Board within the same State. The Central Government had better consider the question of making the Cantonment Board service a centralised service so as to enable one Cantonment Board to transfer, its employees to another Cantonment Board.” 4. The observations in Para 19 were noticed in the case of Ramesh Chand Kachhawaha (Supra), but unfortunately attention of the Court was not drawn to Para 20 which, in our opinion, clinches the issue. The subordinate service in the Municipality not being a Centralised or State level service, unlike the Municipal service contemplated in Section 302 of the Municipalities Act, we are prima facie of the view that there cannot be inter-Board transfer of the subordinate employee of the subordinate service of the Municipality. Since, our prima facie conclusion is different from the one reached by the Division Bench in Ramesh Chand Kachhawaha vs. State of Rajasthan, it would be appropriate to refer the case to Larger Bench for authoritative pronouncement on the point. 5. We direct accordingly.