Hon'ble SHARMA, J. - (1.) -
(2.) DESPITE this Court in a number of earlier decisions has held that rule 38 of the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 (for short, the Rules) is valid and under it a subordinate, ministerial and class IV employees could be transferred from one Municipal Board to another, a contrary view was taken by this Court in the case of Chhaganlal vs. State of Rajasthan and others (1 ). In the said case of Chhaganlal this court struck down rule 38 of the Rules. Thereafter, Section 310A was inserted in the Rajasthan Municipalities Act, 1959 (for short, the Act) by the Ordinance dated December 29, 1990 vesting powers on the State Government to transfer a member of subordinate service, ministerial service or class IV service from one Municipal Board to another and consequently rule 38 was also amended. Later on the said Ordinance was replaced by an Act. In this writ petition the petitioner claims to be the President of Nagar Parishad Sanyukt Karamchari Sangh and is LDC at Municipal Council, Jodhpur and has challenged the vires of Section 310-A of the Act as well as rule 38 of the Rules. In exercise of the powers conferred by clause (b) of sub section (2) of Section 297 read with Section 83 of the Act of the Act the State Government made the Rules. Rule 38 of the Rules may be extracted here and it reads as under: - "38. Transfer of a member of the service from one Board to the other: (1) 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. (2) 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." The said rule was challenged more than once in this court. In the case of Mohanlal Jain vs. State of Rajasthan (2), the learned Judge said that on a careful consideration of Sections 88, 297 and 304 of the Act, he is of the opinion that the State Government has got powers to frame Rules for the transfer of the Municipal employees of the various Municipalities in Rajasthan. In view of the learned Judge sub-section (2) of Sec. 297 authorises the State Government to frame Rules for the regulation of all matters of Section 88 and Sec. 297(1) in terms permits the State Government for framing Rules for determining their service conditions. Rule 38 of the Rules was held to be a valid piece of legislation. In the case of Ramkishore vs. State, (3), the learned Judge placing reliance on the case of Mohanlal (supra) held rule 38 of the Rules to be valid. The same learned Judge again in the case of Ram Pratap vs. State of Rajasthan (4), held rule 38 of the Rules to be valid again placing reliance on the case of the Mohanlal Jain (supra ). Against the said decision in the case of Ram Pratap (supra) a Special Appeal was filed and the said view was upheld by a Division Bench of this Court in the case of State of Rajasthan vs. Ram Pratap In the aforesaid Division Bench case of Rampratap (supra) the court was dealing with the power of the State Government under Sec. 86(9-A) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (for short, PSZP Act) to transfer the employees from one Panchayat Samiti to another. Sub-section (9A) was inserted in Section 86 of the PSZP Act by the Rajasthan Panchayat Laws (Amendment) Act, 1966 and it conferred powers on the State Government to transfer employees from one Panchayat Samiti to another within the district or outside it and further to stay he operation of or cancel any order of transfer made under sub- section (9) of those Rules. After going through the relevant provisions of the PSZP Act the court said that the right to transfer member of the service is an important attribute of the executive power and is considered essential to maintain efficiency and cleanliness in administration and in view of the court the provisions of Sub-section (9A) are neither incompatible with Article 40 of the Constitution nor an excessive delegation of legislative power. What was said in that case was in respect of the powers of the State Government to transfer the employees from one Panchayat Samiti to another and it will apply equally to the powers of the Stale Government to transfer a subordinate, ministerial and class IV employee from one Municipal Board to another. It will be seen from a perusal of the case of Chhaganlal (supra) in which a Division Bench of this Court struck down rule 38 of the Rules that despite the aforesaid view of this court in number of cases, rule 38 of the Rules was struck down on the basis of decisions of the Apex Court in the cases of General Officer Commanding in Chief and another vs. Dr. Subhash Chandra Yadav and another (6), and Jawaharlal Nehru University vs. Dr. K.S. Jawatkar and others, Be that as it may, after the decision in the case of Chhanganlal (supra) an amendment was made and initially the Ordinance was enacted and later the Act replaced the Ordinance. As the challenge is to the newly inserted Section 310A of the Act and to amended rule 38 of the Rules, it will be necessary to read the aforesaid provisions: "Sec. 310.A-Transfer from one Board to another - Any officer or servant of a Board who is a member of 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 the Rules made under Section 297". Amended rule 38 reads as under: - "Persons appointed to the service may be transferred from one Board to other in the same grade and category as and when necessary, a seniority, promotion of such a transferred employee would be maintained in the present Municipality in which he was so appointed. Such transfer shall be made by Director or any other officer authorised by him for this purpose". It may be stated that not only Section 310 A was inserted but there were also amendments in the Act and a reference can also be made in this connection to the Rajasthan Municipalities (Amendment) Act, 1991 by which besides inserting Section 310 A, Sections 13,23,88 and 293A were also amended. If we read Section 88 after its amendment it will be seen that the Board has been conferred powers to make Rules not inconsistent with the provisions of the Act or with the provisions under Sec. 297 for determining the mode and conditions of appointing, transferring, punishing or dismissing any officer or servant and delegating to officers designated in the rules the powers to appoint, fine, reduce, suspend, dismissing any officer or servant. Section 297(1) of the Act vests general powers on the State Government to make the rules for the purpose of carrying into effect the provisions of the Act and its sub-section (2) specifies the powers of the Stale Government to make the rules for specific purpose. Under its clause (a) the State Government has power with reference to all matters expressly required or allowed by the Act to be prescribed. Under newly inserted Section 310-A which has been extracted above any officer or servant of a Board who is a member of 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 the rules made under Sec. 297. Therefore, the State Government under Sec. 297(1) and (2) has been conferred powers to make rules for transferring even a servant of the Board who is a member of subordinate service, ministerial or class IV service. Learned counsel for the petitioner contends that Section 310 A of the Act is ulatravires because as held by a Division Bench of this Court in the case of Chhaganlal (supra) on the basis of two cases of the Supreme Court referred to earlier the Municipal Board being autonomous and independent body has power to appoint its employees and the employees could not have been transferred from one Municipal Board to another as it will amount to change of their employer without their consent and in this connection learned counsel referred to the observations in the case of Chhaganlal (supra) wherein this court said - "Thus, it was made clear by their Lordships of the Supreme Court that the transfer of employees from one Cantonment Board to another violates the autonomy of the autonomous bodies. It was also observed that it was neither a centralised service nor was it a service at the State level and it was pointed out that any such transfer would mean termination of the services of the employee from the Cantenment Board from where he was transferred and a fresh appointment to the Cantonment Board where he joins on his transfer." Learned" counsel also referred to the observations of this court in the case of Chhaganlal (supra) (P/21) wherein it was said - "Now adverting back to the facts of the present cases, there is no two opinion that all the Municipal Boards are autonomous bodies. It is true that under Section i97 read with Section 88 of the Act of 1959 the State Government has a power to frame the rules for the servants of various Municipalities in Rajasthan. But nonetheless the appointing authority for subordinate, ministerial and class IV employees is the concerned Municipal Board or council as the case may be. In case an incumbent is transferred be that a ministerial,! subordinate or class TV employee to another Municipal Board or Council then it will amount to violating the autonomy of the Board or Council, as the case may be, and it also amounts to termination of the services from one Municipal Board or Council and appointment in another Board or Council. This was found to be ultra vires of the Act by their Lordships of the Supreme Court in GOC-in-Chief's case (supra ). Thus, the analogy of the aforesaid case squarely fits in the present cases and on the parity of reasoning Rule 38 of the rules of 1963 and Rule 20 of the rules of 1964 cannot survive". We are of the Opinion that firstly what has been said by the Division Bench of this Court in the case of Chhaganlal was said in the absence of any provision like Section 310-A of the Act empowering the State Government to transfer a member of subordinate, ministerial or class IV service from one Municipal Board to another and secondly we are of the opinion that the powers to transfer can be conferred by a statute. The Apex Court in the case of J.G. Dholkia vs. Scindia Steam Navigation Co. Bombay (8), after quoting the observations from Nokes vs. Doncaster Amalgamated Colliers Ltd., (9), said that a contract of service may be transferred by a statutory provision. Even in the case of General Officer Commanding-in-Chief (supra) the aforesaid case of J.G. Dholkia was referred and the Court said - "The observation of this Court in Jeshamani v. Scindia Steam Navigation Co. (1961) 2 SCR 811 : (AIR 1961 SC 627), relied upon by Mr. Aggarwal, that a contract of service may be transferred by a statutory provision does not at all help the appellants". We are, therefore, of the opinion that a statutory provision can provide for transfer of an employee from one] Municipal Board to another. Even from the aforesaid case of General Officers Commanding-in-Chief (supra) it will be seen that rule 5-C of the Cantonment Boards Servant Rules, 1937 under which power to transfer the employees of the Board was vested in the Board was struck down primarily on the ground of lack of legislative power under the then Sec. 280 of the Cantonments Act. Section 280(2)(c) of the Cantonments Act at the time when the Cantonment Boards Servants Rules were framed in 1937 only conferred power to frame rules in respect of appointment, control, supervision suspension, removal, dismissal and punishment of servants of the Boards. It was only after rule 5-C, which was challenged, that Section 280(2)(c) of the Cantonments Act was amended and under it the powers were conferred on the Central Government to make the rules in respect of tenure of office, salaries, and allowances, provident funds, pensions, gratuities, leave of absence and other conditions of service of servants of Boards. The Apex Court while referring to the amended Sec. 280(2)(c) and the powers conferred therein and while dealing with the argument of the learned counsel for General Officers Commanding-in-Chief that since the section now has been amended a power has been conferred to frame rules, said that - "When rule 5-C was inserted into the Rules, it was void as being contrary to and in excess of the rule making power of the Central Government as contained in the unamended clause (c) of sub-section (2) of section 280 of the cantonments Act. It does not be come valid merely because of the amendment of clause (c) inter alia conferring power on the Central Government to frame rules relating to conditions of service." Learned counsel referred to the observations in the case of General Officers Com-manding-in-Chief (supra) in para 19 and on the strength of the same said that Section 310-A is still ultravires. In para 19 of the aforesaid case the Apex Court said - "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 or opinion, even inspite 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 Boards 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". We are of the opinion that in view of the specific power of transfer under Sec. 310-A and the rules made under Sec. 297 the said observations will not be applicable. In Sec. 280(2)(c) of the Cantonments Act there was no specific power whereas in Sec. 310-A Specific power has been conferred on the State Government to transfer a member of subordinate service, ministerial or class IV service from one Municipal Board to another. We have already said that it can hardly be disputed that Sec. '310-A of the Act was enacted by legislature in view of the powers conferred on it under Entry 5 of List-II (State List) of the Seventh Schedule to the Constitution of India. We are, therefore, of the opinion that it is in exercise of the legislative powers of the State Government that statutory provision of Sec. 310-A has been made in the Act and under the said statutory provision, power can be conferred to transfer the members of subordinate service, ministerial service and class IV service from one Municipal Board to another Municipal Board.
(3.) SO far as the merits of the case are concerned, we find no case to interfere in the transfer. Consequently, we find no merit in this writ petition. It is hereby dismissed with no order as to costs.;