Case: General Officer Commanding-In-Chief and Another Vs. Dr Subhash Chandra Yadav and Another

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 ofthe Cantonments Act, 1924 and also quashing the impugned order of transfer dated October 27, 1986 passed by the GOC-in-Chief, CentralThe respondent, Dr Subhas Chandra Yadav, was appointed a Sub-Charge, Cantonment General Hospital, Lucknow, by the Cantonment Board by the appointment letter dated April 23, 1969. He was confirmed in that post on December 1, 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 toBy a notification dated December 16, 1972, the Rules were amended and a new rule, being Rules 5-C was added to the Rules. Rule 5-C reads as(1) The service of a servant shall be transferable from one post in one Board to another post in another BoardProvided 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 (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 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 transfereeFor the first time, Rule 5-C provided for the transfer of the service 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,Being aggrieved by the said order of transfer passed under Rule 5-C of the Rules, the respondent field 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 Cantonments Act and, as such,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 not 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 Cantonments Act as it stood before it was amended. Hence this appeal

Reasoning: 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 Boards 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 suchSo 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 had 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 Board21. 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 Cantonments Act does not authorise the Central Government to frame rules for transfer from one Cantonment Board toThe High Court was, therefore, quite justified in striking down Rule 5-C of the Rules and in quashing the impugned order of transfer of the respondent