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TMI Blog1988 (2) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 S-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 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 (I) from one Board to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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 is as follows: "S. 280. POWER To MAKE RULES: The Central Government may after previous publication, make rules to carry out the purposes and objects of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a)......................................... (b).......................................... (bb)........................................ (c) the tenure of office, salaries and allowances, provident funds, pensions, gratuities, leave of absence and other conditions of service of servants of Boards;" Clause (c) of sub-section (2) of section 280 was substituted by the amendment of the Cantonment Act by Act XV of 1983. Before such amendment in 1983, clause (c) was as follows: "(c). the appointment, control supervision, suspension, removal, dismissal and punishment of servants of Boards;" It is apparent that before the ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin 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) of section 281 of the Act has specifically provided that after the rules are framed and published they shall have effect as if enacted in the Act. In other words, in spite of the provision of sub-section (2) of section 281, any rule framed under the Cantonment Act has to fulfil the two conditions mentioned above for their validity. The observation of this Court in Jestamani v. Scindia Steam Navigation Company, [1961] 2 SCR 811, relied upon by Mr. Aggarwal, that a contract of service may be transferred by a statutory provision, does not at all help the appellants. There can be no doubt that a contract of service may be transferred by statutory provisions, but before a rule framed under a statute is regarded a statutory provision or a part of the statute, it must fulfil the above two conditions. Rule 5-C was framed by the Central Government in excess of its rule making power as contained in clause (c) of sub-section (2) of section 280 of the Cantonment Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 another college it can hardly be doubted that a new appointment comes into existence. Although the process of transfer may be governed by considerations and move through a machinery different from the considerations governing the appointment of a person ab initio as Principal, the nature of the transaction is the same, namely, that of appointment, and that is so whether the appointment be through direct recruitment, through promotion from the teaching staff of the same institution or by transfer from another institution." The observation extracted above clearly supports 'the contention made on behalf of the respondent that the employees of one Cantonment Board cannot be transferred to another Cantonment Board inasmuch as the service under the Cantonment Board is not a centralised service or a service at the State-level. Mr. Aggarwal, however, submits that the respondent would not be in the least prejudiced by the transfer in as much as full safeguard has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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