1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Som Prakash vs. State of Rajasthan & Ors. S. B . CIVIL WRIT PETITION NO. 4357/2006 Date of Order :: 13.12.2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Kuldeep Mathur, for the petitioners. Mr. G.R. Punia, Addl. Advocate General. Mr. Kailash Joshi, for the respondent No.3. .... BY THE COURT: REPORTABLE The petitioner entered in the services of the Municipal Board, Nimaj being appointed as Sub Nakedar in the year 1977. A promotion to him was accorded as Nakedar in the year 1982. He was further promoted as Assistant Revenue Inspector in the year 1991. The Municipal Board, Nimaj was abolished in the year 1991 itself, therefore, the services of the petitioner were transferred to Municipal Board, Beghu. In the year 1994 he was transferred from Municipal Board, Beghu to 2 Municipal Board, Bilara in district Jodhpur. The lien of the petitioner too was permanently transferred with Municipal Board, Bilara on 2.1.1996. The promotion then was given to the petitioner as Revenue Inspector. Under an order dated 23.5.1997 the petitioner was transferred to Municipal Board, Pushkar, however, by an order dated 25.5.1998 he was again transferred to his parent municipal board i.e. Municipal Board, Bilara. A criminal case was lodged in the year 2004 by the Anti Corruption Bureau, Ajmer somewhere in the year 2004, wherein at initial stage the petitioner was not included in the list of accused persons, however, at a subsequent stage he too was also included as an accused. The Municipal Board, Pushkar in its meeting dated 15.7.2006 granted sanction for prosecution of the petitioner for the offences punishable under Section 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred to as, “the Act of 1988”), while denying to grant such sanction for other employees viz. Nand Kishore and Paras Kumar Jain. By this petition for writ a challenge is given by the petitioner to the sanction granted as aforesaid. The submission of learned counsel for the petitioner is that as per Section 19(1)(c) of the Act of 1988 a permission for prosecution of the petitioner could have been granted only by the authority competent to 3 remove him from his office and in the instant case the power has been exercised by Municipal Board, Pushkar that is not having such authority. It is asserted that the petitioner is an employee of Municipal Board , Bilara, therefore, the authority for grant of sanction to prosecute could have been granted only by his parent municipal board. Per contra, as per the respondents the petitioner at the time when the offence was committed was working with Municipal Board, Pushkar, therefore, the Board being an appointing authority as per provisions of Section 310 of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred to as, 'the Act of 1959') was having all powers to grant sanction for prosecution of the petitioner as per provisions of Section 19(1)(c) of the Act of 1988. Heard counsel for the parties. Section 19(1)(c) of the Act of 1988 provides that no court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by public servant except with the previous sanction of the authority competent to remove such public servant from his office, if, he is not working with Central Government or the State Government. Meaning thereby the sanction to prosecute the petitioner could have been granted only by the authority competent to 4 remove him from office. As per Section 310 of the Act of 1959 the appointing authority of the petitioner, being an Inspector, is a Municipal Board. As per sub-section 5 of Section 310 of the Act of 1959 he can be removed from service by the appointing authority only. In view of the provisions aforesaid, the appointing authority of the petitioner is municipal board, however, the question requires determination is that whether it is Municipal Board, Bilara or Municipal Board, Pushkar. As per the petitioner, Municipal Board, Bilara is his parent employer, therefore, his appointing authority is also Municipal Board, Bilara, and as such, that Board is competent to remove him from service and not the Municipal Board, Pushkar. Precisely, the issue requires consideration is that what shall be the effect of transfer of an employee from one municipal board to another municipal board in relation to discipline and control over him. The power to transfer an employee from one municipal board to another municipal board is available to the State Government as per Section 310-A of the Act of 1959 which prescribes that, “an officer or servant of a board, who is a member of subordinate service, ministerial service or Class IV service, may be transferred by the State Government from the service of one board to the service of another board in accordance with the Rules made under Section 297.” The Rules made under Section 297 of the Act of 1959 relevant in present controversy are the Rajasthan Municipal Board (Subordinate and 5 Ministerial Service) Rules, 1963 and Rule 38 of these Rules prescribes that services of a person can be transferred from one Board to another in the same grade and cadre. The seniority and promotion of a transferred employee shall be maintained in his parent municipal board, where he was appointed. In view of the provisions of Section 310A readwith Rule 38 of the Rules of 1963, the parent municipal board of the petitioner is Municipal Board, Bilara, where his lien is resting and where his seniority and promotions are to be considered and maintained. The transfer as per Section 310-A of the Act of 1959 read with Rule 38 of the Rules of 1963 empowers the State Government for transfer of an employee but it does not cloth the State Government with any power to transfer lien of an employee from one municipal board to another. The transfer in such cases appears to more akin to deputation than the permanent transfer of services. The transfer by way of deputation means temporary transfer of service of an officer or an employee from his parent institution to some other institution. The transfer under Rule 38 aforesaid is such kind of transfer outside the cadre of the parent institution and that is only on temporary basis, as that is apparent from the fact that statutorily seniority and promotion of such transferred employee are required to be maintained with parent municipal board. Once it is held that the transfer to another body is on temporary basis, then it can very well be said that the appointing authority of the person shall be his parent institution. As per Section 310 of the Act of 1959, it 6 is only the appointing authority that is having power to remove its employee from office, then certainly the authority to grant sanction for prosecution as per the provisions of Section 19(1)(c) of the Act of 1988 is also available to parent institution only. The contention of the respondents that the petitioner at the relevant time was working with Municipal Board, Pushkar, therefore, that Board was competent to remove him from office at that relevant time is not sustainable in view of the discussion made above. The petition for writ, therefore, deserves acceptance. Accordingly, the same is allowed. The order impugned dated 15.7.2006 granting sanction for prosecution of the petitioner for the offence punishable under Prevention of Corruption Act, 1988 is declared bad and the same is hereby quashed. However, this will not preclude the competent authority i.e. the Municipal Board, Bilara to consider case of the petitioner regarding his involvement in the offences punishable under the Act of 1988. The Municipal Board, Bilara may consider and may take appropriate decision relating to the grant of sanction for prosecution of the petitioner. ( GOVIND MATHUR ),J. jgoyal