Sec. 336 of the Rajasthan Municipalities Act, 2009, which empowers the State Government to transfer employees of subordinate, ministerial, and class-IV services from one Municipality to another, is constitutional and valid. It does not violate the mandate of self-government for municipalities established under Art. 243-Q of the Constitution, as it contains a proviso that protects the service conditions and promotion rights of transferred employees.

AJAY RASTOGI, J.

1. 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 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.

2. 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.310-A 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.

3. At one point of time, the Division Bench of this Court in the case of Chagan Lal v. State of Rajasthan, 1990 (1) RLR page 95 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 the Rules, 1963.

4. Sec. 310-A of the Act, 1959 read with R.38 of the Rules, 1963 sub sequently came to be examined by the Division Bench of this court in the case of Ramesh Chand Kachhawaha v. State of Rajasthan, 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.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.

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.”

5. 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