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SUPREME COURT OF INDIA
RANGANATH MISRA AND M.M. DUTT, JJ.
General Officer Commanding-in-chief and another, Appellants
Versus
Dr. Subhash Chandra Yadav and another, Respondents.
Civil Appeal No. 754 of 1988 (Arising out of S. L.P.(C) No. 12490 of 1987), D/- 25-2-1988.
Provisions of the Cantonment Act, 1924 – Section 280 – Striking of provisions – Appeal is directed against the judgment of the Allahabad High Court striking down Rule 5-C of the Cantonment funds Servants Rules, 1937, as ultra vires the provisions of the Cantonment Act, 1924 and also quashing the impugned order of transfer passed by the GOC-in-Chief, Central Command –Held, 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 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 – Appeal dismissed.
Key Points: - Rule 5-C was struck down as ultra vires the Cantonments Act and beyond the Central Government's rule-making power before amendment. (!) (!) - The Cantonment Boards are autonomous, not centralised or State-level services; transfer across Boards within the same State entails termination and fresh appointment, thus not permissible under the existing framework. (!) (!) - Post-amendment, the Central Government’s power to frame rules for conditions of service includes transfer, but Rule 5-C remains invalid because it was void when framed and cannot be validated merely by amendment. (!) (!) - Central Government can frame rules for transfers within the region of its jurisdiction (e.g., within a Board’s own hospital), but not for transfers between different Cantonment Boards within the same State. (!) (!) - High Court correctly held Rule 5-C ultra vires; transfer order against respondent was quashed. (!) (!) - The appeal is dismissed; no order as to costs. (!)
Judgment
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.
2. 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 Act, 1924 and also quashing the impugned order of transfer dated October 27, 1986 passed by the GOC-in-Chief, Central Command.
3. 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 the Rules then prevailing. His appointment letter also did not include any condition for transfer from one Board to another.
4. By a notification dated 16-12-1972, the Rules were amended and a new rule, being Rule 5-C was added to the Rules. Rule 5-C reads as follows :-
"R. 5-C. (1) The service of a servant shall be transferable from one post in one Board to another post in another Board :
Provided that :-
(a) The transferor and transferee Boards are situated within the same State; and
(b) The posts in both the Boards are similar and carry the same scales of pay.
(2) Subject to such general directions as the Central Government may issue from time to time, the Officer Commanding-in-Chief, the Central Command, or such other authority as may be authorised by the Central Government in this behalf, shall be the competent authority to transfer a servant under this rule.
(3) A servant on transfer under sub-rule (1) from one Board to another may, for the purposes of determination of seniority and eligibility for promotion opt :-
(i) to be governed by the conditions applicable in this behalf to the servants of the Board from which he has been transferred (hereinafter referred to as the transferor Board) : or
(ii) to be governed by the conditions applicable in this behalf to the servants of the Board to which he has been transferred (hereinafter referred to as the transferee Board) :
Provided that where a servant does not opt under this rule within thirty days from the date of assumption of charge in the transferee Board, he shall, for purposes of promotion and seniority, be governed by the conditions applicable in this behalf to the servants of the transferor Board.
(4) Save as provided in sub-rule (3), the terms and conditions of service of a servant transferred under this rule shall be deemed to be those applicable to the servants of the transferee Board.
(5) Where the servant opts under clause (ii) of sub-rule (3), the service put in by him under the transferor Board before his transfer shall be deemed to be service under the transferee Board.
5. For the first time, Rule 5-C provided for the transfer of the services of the employees of the Cantonment Boards from one post in one Board to another post in another Board within the same State. The GOC-in-Chief, Central Command, by his order dated October 27, 1986 transferred the respondent from the Cantonment General 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.
6. 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 Contonments Act and, as such, void.
7. As has been stated alrea
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