Rajasthan High Court - Jaipur
Poonam Chand vs State (Local Self Dep )Ors on 3 November, 2017
Author: Ajay Rastogi
Bench: Ajay Rastogi
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. CIVIL WRIT PETITION NO. 10595/2015
Hitendra Shrangi S/o Shri Murlidhar Shrangi, Age 31 years, R/O Near
Sulabh Complex, Rampura, Kota.
Petitioner
VERSUS
1. State of Rajasthan through Principal Secretary, Local Self
Department, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Director Local Bodies, Govt. of Raj., Jaipur.
3. Nagar Nigam Kota through Chief Executive Officer, Nagar Nigam,
Kota.
Respondents
D.B. CIVIL WRIT PETITION NO.10223/2015 Govind Ram Gwala son of Shri Heera Lal Gwala aged about 59 years, 2 months, by caste Gwala, resident of Ward No.5, Ghosi Mohalla, Deoli District Tonk (Rajasthan).
VERSUS
1. State of Rajasthan through Principal Secretary, Local Self Department, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Director Local Bodies, Govt. of Raj., Jaipur.
3. Municipal Board, Deoli through its Executive Officer, Municipal Board Deoli District Tonk.
4. Municipal Board, Vijaynagar through its Executive Officer, Municipal Board Vijaynagar District Ajmer.
Respondents D.B. CIVIL WRIT PETITION NO. 10594/2015
1. Chintmani Sharma D/o Shri Visnuprasad Sharma, W/o Madhukant Shrangi, Age 37 years, R/o 98, Shrangi Katla, Rampura, Kota, Rajasthan.
VERSUS
1. State of Rajasthan through Principal Secretary, Local Self Department, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Director Local Bodies, Govt. of Rajasthan., Jaipur.
3. Nagar Nigam Kota through Chief Executive Officer, Nagar Nigam, Kota.
D.B. CIVIL WRIT PETITION NO. 10596/2015 Madhukant Shrangi S/o Shri Mohanlal Shrangi, Age 43 years, R/o 98, Shrangi Katla,Rampura, Kota.
VERSUS
1. State of Rajasthan through Principal Secretary, Local Self Department, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Director Local Bodies, Govt. of Rajasthan., Jaipur.
3. Nagar Nigam Kota through Chief Executive Officer, Nagar Nigam, Kota.
D.B. CIVIL WRIT PETITION NO. 10897/2015 Ashok Kumar, S/o Shiv Lal, Aged about 42 year, R/o 32, Bank Colony, Alwar. Presently working as Driver in Municipal Council, Alwar.
Versus
1. State of Rajasthan through Principal Secretary, Local Self Government Department, Govt. Secretariat, Jaipur.
2. Dy. Secretary & Director, Local Bodies, Rajasthan, Jaipur.
3. Commissioner, Municipal Council, Alwar D.B. CIVIL WRIT PETITION NO. 11808/2015 (2 of 16) [CW-10595/2015] Rajveer yadav, S/o late Ravindra Nath yadav, Aged about 55 years, R/o Plot No.4, In front of Chungi Naka, Behror Road, Alwar.
----Petitioner Versus
1. State of Rajasthan through Principal Secretary, Local Self Government Department, Govt. Secretariat, Jaipur.
2. Dy. Secretary & Director, Local Bodies, Rajasthan, Jaipur.
3. Commissioner, Municipal Council, Alwar
----Respondents D.B. CIVIL WRIT PETITION NO. 11809/2015 Poonam Chand, S/o Shiv Lal, Aged about 55 years, R/o 32, Bank Colony, Alwar. Presently working as Office Assistant in Municipal Council, Alwar.
----Petitioner Versus
1. State of Rajasthan through Principal Secretary, Local Self Government Department, Govt. Secretariat, Jaipur.
2. Dy. Secretary & Director, Local Bodies, Rajasthan, Jaipur.
3. Commissioner, Municipal Council, Alwar
----Respondents D.B. CIVIL WRIT PETITION NO. 14730/2016 Kamlesh kumar Sharma (Surolia) son of Shri Nand Kishore Surolia, aged about 59 years, by caste Brahmin, resident of Plot No. 1, Magniram Jangid Colony, Near Bus Stand, Vijay Nagar, Ajmer (Rajasthan).
-----Petitioner Versus
1. State of Rajasthan through Principal Secretary, Local Self Department, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Director, Local Bodies, Govt. of Rajasthan, Jaipur.
3. Municipal Borad, Vijay Nagar through its Executive Officer, Municipal Board Vijay Nagar District Ajmer.
Respondents D.B. CIVIL WRIT PETITION NO. 14862/2016 Aashique Khan S/o Late Phakir Chand Shri Age 23 years, R/o Near Jaipur Golden Power House- Kota, Rajasthan Petitioner Versus
1. State of Rajasthan through Director cum Special Secretary, Local Bodies, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Nagar Nigam Kota through Upayukat (Head Quarter), Nagar Nigam Kota.
Respondents.
D.B. CIVIL WRIT PETITION NO. 14869/2016 Sanjay kumar Sharma S/o Shri Radhey Shyam Sharma, aged about 46 years, resident of Ward No. 17, Post Ballupura, Khandela, Distt. Sikar, Presently Posted as Class- IV Employee, Municipal Board, Khandela, Distt. Sikar (Raj.).
---PETITIONER.
Versus
1. State of Rajasthan through Principal Secretary, Local Self Government Department, Government Secretariat, Jaipur.
(3 of 16) [CW-10595/2015]
2. Deputy Secretary & Director, Local Bodies, Rajasthan, Jaipur.
3. Executive Officer, Municipal Board, Khandela, Distt. Sikar.
----RESPONDENTS.
D.B. CIVIL WRIT PETITION NO. 15080/2016 Shahnwaz Akhtar S/o Abdul Mustafa, Age 30 years, R/o 20/150, Javed Manjil, Shripura, Kota, Rajasthan.
Petitioner Versus
1. State of Rajasthan through Director cum Special Secretary, Local Bodies, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Nagar Nigam Kota through Upayukat (Head Quarter), Nagar Nigam Kota.
Respondents D.B. CIVIL WRIT PETITION NO. 15372/2016 Afaque Mohammad S/o Late Ahsan Mohammed, Age 32 years, R/o Chitode ke Nohre ke Pass Brajrajpura, Kaithunipol 20/150, Kota city, Kota, Rajasthan.
Petitioner Versus
1. State of Rajasthan Through Director cum Special Secretary, Local Bodies, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Nagar Nigam Kota through Upayukat (Head Quarter), Nagar Nigam Kota.
Respondents D.B. CIVIL WRIT PETITION NO. 16757/2016 Mohammad Irfan S/o Abdul Khalik, Age 31 years, R/o Khalik Bidi Walo ka Makan, Karbala, Ladpura, Kota, Rajasthan.
Petitioner Versus
1. State of Rajasthan Through Director cum special Secretary, Local Bodies, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Nagar Nigam Kota through Chief Executive Officer, Nagar Nigam, Kota.
Respondents D.B. CIVIL WRIT PETITION NO. 17048/2016 Kamruddin S/o Mohammad Hussain, Age 58 years, R/o 3-F-8, Vigyan Nagar, Ladpura, Kota, Rajasthan.
Petitioner Versus
1. State of Rajasthan Through Director cum Special Secretary, Local Bodies, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Nagar Nigam Kota through Chief Executive Officer, Nagar Nigam, Kota.
Respondents D.B. CIVIL WRIT PETITION NO. 17096/2016 (4 of 16) [CW-10595/2015] Gyanesh kumar Medatwal (Gyanesh Sharma) S/o Kuldeep Kumar, Age 28 years, R/o 4-J-2, Rangbari Extention, Kota, Rajasthan.
Petitioner Versus
1. State of Rajasthan through Director cum Special Secretary, Local Bodies, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Nagar Nigam Kota through Chief Executive Officer, Nagar Nigam, Kota.
Respondents D.B. CIVIL WRIT PETITION NO. 17097/2016 Avdhesh Joshi, S/o Late Mahesh Joshi, Age 41 years, By Caste Joshi, R/o House No. 39, Nagar Nigam, Kota, Rajasthan.
Petitioner Versus
1. State of Rajasthan through Director cum Special Secretary, Local Bodies, Govt. of Rajasthan, Government Secretariat, Jaipur.
2. Nagar Nigam Kota through Chief Executive Officer, Nagar Nigam, Kota.
Respondents _____________________________________________________ For Petitioner(s) : Sh. Rajendra Soni Adv.
Sh. S.L. Songara Adv.
Sh. S.L. Kumawat Adv.
Sh. Lokesh Sharma Adv.
For Respondent(s) : Mr. Rajendra Prasad, Addl. Adv. Gen. With Sh. Surya Pratap Singh Adv.
Sh. Manu Bhargava GC _____________________________________________________ HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Date of Judgment :- 3rd November,2017 By the Court (Per Hon'ble Rastogi,J) :-
The present batch of writ petitioners are members of the Rajasthan Municipal (Subordinate & Ministerial Service) Rules,1963 ("Rules,1963") & Rajasthan Municipalities (Class IV Service) Rules,1964 ("Rules,1964") and primarily aggrieved by (5 of 16) [CW-10595/2015] the order of their inter transfer from one Municipality to another questioning validity of Sec.336 of the Rajasthan Municipalities Act,2009 ("Act,2009") which authorizes the State Government to transfer any officer or servant of a Municipality who is member of subordinate service, ministerial service or class IV service under Rules,1963 or Rules,1964 respectively from the service of one Municipality to the services of another Municipality but with a rider that lien of the officer or servant so transferred shall remain in the parent Municipality and he shall be considered for further promotion whenever a consideration for promotion to the higher post in his cadre is made in the parent Municipality under the Rules,1963 or Rules, 1964 respectively.
At the outset it may be noticed that there was analogous provision which authorizes the State Government to transfer any member of subordinate service, ministerial service, class-IV Service from one Municipality to the other u/S.310A of the Rajasthan Municipality Act,1959 ("Act,1959") which was inserted by Rajasthan Municipality (Amendment) Act,1991, at the same time there was a corresponding provision R.20 under the Rules,1964 for transfer of an employee who is member of Class-IV Service from one Board to the other and other corresponding provision R.38 of the Rules,1963 for transfer of an employee who is member of Subordinate & Ministerial Service from one Board to the another.
At one point of time, the Division Bench of this Court in the case of Chagan Lal Vs. State of Rajasthan, 1990(1) RLR page 95 (6 of 16) [CW-10595/2015] struck down R.38 of the Rules,1963 and taking note thereof Sec.310A was later inserted under the Act,1959 by Raj. Act No.4 of 1991 conferring power to the State Government to transfer a member of subordinate service, ministerial service or class-IV Service from one Board to the other and in consequence R.38 was inserted under the Rules,1963.
Sec.310-A of the Act,1959 read with R.38 of the Rules,1963 subsequently came to be examined by the Division Bench of this Court in the case of Ramesh Chand Kachhawaha Vs. State of Rajasthan & Ors., reported in 1994(1) WLC (Raj.) 702 upholding legislative power of the Government enacting R.310-A under the Act,1959 which confers power on the Government to transfer a member of subordinate service, ministerial service, class-IV Service from one Board to the other and we consider it appropriate to quote the relevant para of the judgment as under :-
"We are of the opinion that in view of the specific power of transfer under Sec.310A 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.
(7 of 16) [CW-10595/2015]
5. 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."
It may be relevant to note that after the Act,1959 came to be replaced by Rajasthan Municipalities Act,2009, Sec.336 which is corresponding to Sec.310-A of the Act, 1959 confers power to the State Government to transfer any officer or servant of a Municipality who is member of subordinate service, ministerial service or class-IV service from one Municipality to the other with a proviso added thereto that lien of the officer or servant so transferred shall remain in the parent Municipality and he shall be considered for further promotion whenever a consideration for promotion to the higher post in his cadre is made in the parent Municipality. We consider it appropriate to quote Sec.336 of the Act,2009 as under :-
"336. Transfer from one Municipality to another.(1) Any officer or servant of a Municipality who is member of subordinate service, ministerial service or class IV service may be transferred by the State Government from the service of one Municipality to the services of another Municipality.
(2) Any officer or servant of the Municipality may be transferred by the State Government to the Jaipur Development Authority or Jodhpur Development Authority or Rajasthan Housing Board or any Urban Improvement Trust or any other local body carrying pay scale not lower (8 of 16) [CW-10595/2015] than the pay scale of the officer or servant to be transferred.
Provided that the lien of the Officer or servant so transferred shall remain in the parent Municipality and he shall be considered for further promotion whenever a consideration for promotion to the higher post in his cadre is made in the Municipality."
In the light of judgment of the Division Bench of this Court in Ramesh Chand Kachhawaha's case (supra) ordinarily there was no occasion to revisit the matter any further since the Division Bench has examined validity of Sec.310-A of the Act,1959 and when the matters were listed at the motion stage counsel for the petitioners placed reliance on the order of the Coordinate Bench of this Court passed in D.B. Civil Writ Petition No.6213/1992 Amarchand Sharma Vs. State of Rajasthan & ors. where validity of Sec.310-A of the Act,1959 was under challenge at the instance of the employee transferred from one Municipal Board to the another and the Coordinate Bench of this Court after the matter being heard was of the prima facie view that what is being considered by the Division Bench in Ramesh Chand Kachhawaha's case (supra) of which detailed reference has been made by us, the matter deserves to be revisited keeping in view judgment of the Apex Court in the case of General Officer Commanding-In-Chief Vs. Dr. Subhash Chandra Yadav, (1988) 2 SCC 351 and further observed that although para-19 was noticed in the case of Ramesh Chand Kachhawaha (supra) but it appears that para-20 of the judgment which clinches the issue was not brought to the notice of the Court and arrived to a prima facie (9 of 16) [CW-10595/2015] view that the matter deserves to be revisited & referred the matter to the Larger Bench for authoritative pronouncement on the point vide its order dt.25-1-2006.
Notices were issued by this Court and interim protection was also provided to most of the writ petitioners and in consequence some of the writ petitioners who too were transferred from one Board to the other approached at a later point of time, although notices were issued by this Court but no interim protection was extended. In some of the cases transfers were not given effect to and the writ petitioners were allowed to continue on the present place of posting and transfer orders are impugned in the instant proceedings.
It may be further noticed that before we could examine the matter we requested the counsel to inform about final fate of the order dt.25-1-2006 referring the matter to the Larger Bench for authoritative pronouncement & we are informed that the matter was never placed before the Larger Bench and as informed orders were passed in the writ petition no.6213/1992 declaring it to be infructuous vide order dt.27-5-2011 which reads as under :-
"Petitioner has assailed the order of his transfer. None has put in appearance on behalf of the appellant to prosecute the case. Matter has assumed academic importance now.
Consequently, the writ petition stands dismissed."
The main thrust of submissions of counsel for petitioners is that taking note of the view expressed by the Coordinate Bench of this Court referring the matter to the Larger Bench vide its order (10 of 16) [CW-10595/2015] dt.25-1-2006 relying on the judgment of the Apex Court in General Officer Commanding-In-Chief's case (supra), wherein it was observed by the Apex Court while examining the matter relating to transfer of the employees of one Cantonment Board to the other while examining R.5(C) of the Cantonment Funds Servants Rules,1937 although para-19 has been noticed by the Division Bench in Ramesh Chand Kachhawaha's case (supra) but the observations made in para-20 which clinches the issue remain unnoticed and if that is being taken note of, indisputably according to petitioners' counsel, Sec.336 of the Act, 2009 is ultra vires to the provisions of the Constitution and deserves to be quashed & set aside.
That apart further submission has been made in reference to Part-IX-A inserted by 74th Amendment Act,1992, Sec.2 (w.e.f.1-6- 1993) and submits that municipality is an institution of self Government constituted under Art.243-Q of the Constitution at least after 74th amendment under the Constitution such inter transfers from one Municipality to the other are not permissible & is in violation of mandate of Constitution.
Per contra counsel for the State on the other hand submits that at least in the light of judgment of this Court in Ramesh Chand Kachhawaha's case (supra) the question raised for consideration in the instant batch of petitions is no more res integra and as regards order of the Coordinate Bench of this Court of which reference has been made dt.25-1-2006 questioning validity of Sec.336 of the Act of 2009 is concerned, counsel (11 of 16) [CW-10595/2015] submits that the judgment relied upon by this Court in General Officer Commanding-In-Chief's case (supra) that has been considered by the Division Bench in Ramesh Chand Kachhawaha's case (supra) and that apart the said judgment has no application in the facts of the instant case for the reason that Sec.280 of the Cantonment Act confers power on the Central Government to make rules with respect to various service conditions but not with respect to transfers and transfer is a condition of service and primarily R.5C of the Rules which empowers to transfer the employee from one Board to the another was not considered to be a valid exercise of power in absence of any express provision in the statute which delegates authorization for framing rules for transfer of the employees but in the instant case the legislature in its wisdom has enacted Sec.336 under the parent Act, 2009 which is almost pari materia to Sec.310-A of the Old Act, 1959 authorizing the State Government to transfer the employees who are members of subordinate service, ministerial service, class-IV service from one Municipality to the other keeping their rights reserved in their parent Municipality regarding seniority, promotion etc. and no prejudice of any kind is being caused to the employee on being transferred from one Municipality in exercise of its power by the Government u/S.336 of the Act,2009 (Sec.310-A of the old Act,1959) to another Municipality & corresponding provision has been made u/R.20 of the Rules,1964 & u/R.38 of the Rules,1963 respectively and in the given facts & circumstances the judgment of the Apex Court in General Officer Commanding-In-
(12 of 16) [CW-10595/2015] Chief's case (supra) was taken note of by this Court making it to be a basis for taking a prima facie different view of the matter and making reference to the Larger Bench on the face of it appears to be erroneous and the question is no more pending before the Larger Bench of this Court & having been examined by the Division of this Court in Ramesh Chand Kachhawaha (supra), needs no further indulgence by this Court to revisit the provision which has now been questioned in the present batch of petitions & submits that the Government holds competence to transfer in exercise of power u/S.336 of the Act,2009 and that being valid & constitutional needs no further indulgence of this Court.
After we have heard counsel for the parties we are also of the view that Sec.336 of the Act,2009 is an analogous provision to Sec.310-A of the repealed Act,1959 and that has been examined by the Division Bench of this Court in Ramesh Chand Kachhawaha's case (supra) and its validity has been upheld of which reference has been made by us and taking note thereof we are of the view that the matter remains no more res-integra needs no further consideration after the pronouncement being made by this Court.
As regards the order lateron passed by the Division Bench of this Court in CWP-6213/1992 dt.25-1-2006 is concerned, it was only a prima facie view regarding inter transfer of member of subordinate service, ministerial service, class-IV service from one Municipality to the another and more emphasis was on para-20 of the judgment of the Apex Court. We would like to observe that (13 of 16) [CW-10595/2015] judgment of the Apex Court in General Officer Commanding-In- Chief's case (supra) is not applicable in the facts of the instant case which although has been considered at length by the Coordinate Bench of this Court in Ramesh Chand Kachhawaha's case (supra) and we would further like to observe that Sec.280 of the Cantonment Act which originally conferred power on the Central Government to make rules with respect to various service conditions including appointment, suspension, removal, dismissal, punishment etc., after the amendment of Sec.280(c) if confers power regarding other conditions of service to the Government but not in reference to transfer of the employees from one Board to the another and in that context it was observed by the Apex Court that in the absence of there being any power conferred u/S. 280 (2)(c) such transfer could not have been made & it is in that context para-19 & 20 but in the instant case Sec.336 of the Act, 2009 (Sec.310A of the Old Act, 1959) gives explicit power to the State Government to transfer the employees/members of subordinate service, ministerial service, class-IV service from one Board to the another and the corresponding provision has been inserted R.20 to the Rules,1964 & R.38 to the Rules,1963 and that apart proviso to Sec.336 of the Act, 2009 has made its intention further clear that the service conditions of an employee on being transferred from one Municipal Board to the another may not affect the service condition and right of fair consideration remain confined in his parent municipality and taking note thereof we too are of the view that Sec.336 of the Act,2009 which is (14 of 16) [CW-10595/2015] corresponding to Sec.310-A of the repealed Act,1959 after being examined at length by the Division Bench of this Court remain no more res-integra for consideration and in our view mandate of Sec.336 of the Act,2009 confers power on the State Government to transfer the employee of subordinate service, ministerial service, class-IV service & its legislative competence enacted by the 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 cannot be disputed and it is valid & constitutional.
Before parting with the order we would like to further observe that under the Rajasthan Panchayat Samiti & Zila Parishad Act,1959 also there is a similar provision u/S.86(9A) where the State Government holds competence to transfer any member of the service from one Panchayat Samiti to the another Panchayat Samiti whether within the same district or outside it and in addition, holds further competence to stay the operation of, or cancel, any order of transfer made under sub-section (9) or the rules made thereunder. and we would like to further record that Sec.86(9A) which confers power on the State Government to transfer the employee from one Panchayat Samiti to the another is almost pari materia to the provisions of Sec.336 of the Act,2009 & its validity came to be examined in the case of State of Rajasthan Vs. Ram Pratap, RLR 1988(2) 136 the Division Bench of this Court in para-11 & 12 observed as under :-
(15 of 16) [CW-10595/2015] "11. We may add that arbitrariness is the antithesis of the right to equality enshrined in Article 14 of the Constitution and, therefore, all State action should be guided by reason and fairness. If any order is actuated by malice or is the result of extraneous considerations or is otherwise oppressive or vindicative, this Court will not hesitate, if such a plea is well founded and acceptable, to intervene, condemn and even strike down any such order. Judicial review is always available to invalidate any order which is arbitrary, mala fide oppressive or is tainted with extraneous considerations.
True, this power inherent in this Court is to be exercised sparingly in special and exceptional circumstances and with circumspection.
12. For the reasons discussed above, we hold that Sub- section (9A) of Section 86 of the Act is valid and constitutional."
We find that in some of the writ petitions where the transfer orders impugned are not given effect to because of interim protection granted by this Court & that being so no purpose is going to be served in now giving effect to and such transfer orders by passage of time has lost its significance but we would like to make it clear that if any occasion arises in future the authority will be at liberty to take fresh decision in exigency of service or in the interest of administration if required in accordance with law but where there is no stay granted by this Court in reference to the transfer orders impugned & still the employee has not joined at (16 of 16) [CW-10595/2015] the place of posting the respondents are at liberty to take action against the employee in accordance with law.
In the light of above discussion, the petitions fail & accordingly dismissed with the observations made (supra). Copy of the order be separately placed in each connected file. (DEEPAK MAHESHWARI),J. (AJAY RASTOGI),J. VS Shekhawat,PS