TMI Blog1988 (2) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... MISRA AND M.M. DUTT, JJ. JUDGMENT The Judgment of the Court was delivered by DUTT, J. - As elaborate submissions have been made by both the parties at the preliminary hearing of the special leave petition, we proceed to dispose of the points involved in the case on merits after granting special leave. The appeal is directed against the judgment of the Allahabad High Court striking down rule 5-C of the Cantonment Funds Servants Rules, 1937, hereinafter referred to as 'the Rules', as ultra vires the provisions of the Cantonment A rt, 1924 and also quashing the impugned order of transfer dated October 27, 1986 passed by the GOC-in- Chief, Central Command. The respondent, Dr. Subhas Chandra Yadav, was appointed a Sub-Charge, Cantonment General Hospital, Lucknow, by the Cantonment Board by the appointment letter dated 23.4.1969. He was confirmed in that post on 1.12.1969 by an order issued by the Cantonment Board. The conditions of service of the employees of the Cantonment Board, which is a statutory body, are governed by the provisions of the Rules. At the time of the appointment of the respondent, his services were not transferable as per the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Hospital, Lucknow, to the Cantonment General Hospital, Varanasi, in place of one Dr. Bansal, who was also transferred by the same order to the Cantonment General Hospital, Bareilly. Being aggrieved by the said order of transfer passed under rule 5-C of the Rules, the respondent filed a writ petition in the Allahabad High Court challenging the validity of the order of transfer on the ground that rule 5- C was ultra vires the provisions of the Cantonment Act and, as such, void. As has been stated already, the High Court has struck down rule 5-C holding, inter alia, that the services of the employees of the Cantonment Board are neither centralised nor is there a common State-level service and that the impugned rule 5-C, having provided for the transfer of the employees of one Board to another Board by the GOC-in-Chief, Central Command, is beyond the rule making power of the Central Government as contained in clause (c) of sub- section (2) of section 280 of the Cantonment Act as it stood before it was amended. Hence this appeal. Section 280 of the Cantonment Act confers power on the Central Government to make rules. The relevant portion of section 280 of the Cantonment Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Our attention has been drawn to the provision of sub- section (2) of section 281 of the Cantonment Act, which provides that all rules made under the Act shall be published in the official Gazette and in such other manner, if any, as the Central Government may direct and, on such publication, shall have effect as if enacted in the Act. It is urged on behalf of the appellants that in view of sub- section (2) of section 281, rule 5-C became a part of the statute and, accordingly, the question of its being contrary to the provisions of the Cantonment Act does not at all arise. This contention is unsound. It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. The position remains the same even though sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Lordship then was) speaking for the Court observed as follows: As is clear by now, the fundamental basis of the contention that the power of transfer under the Education Act and its Regulations continues in force even after the enactment of the Services Commission Act rests on the assumption that the power of appointment does not include the power of transfer. In our opinion, the assumption is unsustainable. The scheme under the Education Act envisages the appointment of a Principal in relation to a specific college. The appointment is in relation to that college and to no other Moreover, different colleges may be owned by different bodies or organisations, so that each Principal serves a different employer. Therefore, on filling the office of a Principal to a college, a new contract of employment with a particular employer comes into existence. There is no State- level service to which Principals are appointed. Had that been so, it would have been possible to say that when a Principal is transferred from one college to another no fresh appointment is involved. But when a Principal is appointed in respect of a particular college and is thereafter transferred as a Principal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice 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. 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 has 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. As has been held by the High Court, the Central Government has power to frame rules about the transfer of the servants of the Board in exercise of its powers under clause (c) of sub-section (2) of section 280 of the Act within the region in respect of which it has jurisdiction. For example, the respondent could be transferred from one hospital of the Cantonment Board, Lucknow, to another hospital under the same Board. But that apart, the Cantonment Act does not authorise the Central Government to frame rules for transf ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
