1. The petitioner prays for the issue of a writ of mandamus or any other appropriate writ directing the Government to forbear from giving effect to the orders passed in G.O. Ms. No. 1082, dated 8 November, 1954, and to prepare his pension roll with reference to his services as municipal commissioner. The petitioner was a head clerk in the Revenue Divisional Officer's office at Narasaraopet on a fixed pay of Rs. 75. In the year 1943, he was appointed as fourth grade municipal commissioner. In due course he was promoted as second-grade commissioner and he acted in that capacity till 1 October, 1954, the date of his retirement. On that date he put in a petition to the Government with a request that his pension should be fixed on the basis of the pay drawn by him as commissioner. The Government issued orders stating that the pay of municipal commissioner could not be said to be one drawn as in State service and consequently his pension could not be determined with reference to the pay drawn by him as municipal commissioner. He was also asked to address the Collector, Guntur, to prepare his pension papers and get his pension sanctioned. It is this order that is now impugned before me.
2. In support of this petition, it is urged by Mr. Chandrasekhara Sastri that the commissioners are appointed by Government, that their transfers are effected and leave granted by Government and they are removable from office by the same authority and that they are amenable to the disciplinary jurisdiction of the same authority and so the commissioners should be regarded as being in the service of the Government with the result that on their retirement their pension and leave allowances should be governed by the conditions of service of the department from which they were transferred.This argument is founded on S.12C of the District Municipalities Act which lays down :
'A commissioner shall be appointed by the State Government in the case of each municipality included in Sch. 9 and in the case of any other municipality notified by the State Government in this behalf. Every notification issued under this sub-section shall specify the reasons therefor.'
3. Another provision called in aid to substantiate this argument is rule 30 of the Madras Civil Services (Classification, Control and Appeal) Rules which runs as follows :
'These rules shall apply mutatis mutandis to members of the State services serving as commissioners of municipalities, the authority competent to impose the penalties and the appellate authority being respectively the State and the Governor of Madras.'
4. I do not think that statutory provision contained in the District Municipalities Act or rule 30 of the Civil Services (Classification, Control and Appeal) Rules comes to the rescue of the petitioner. Section12C of the District Municipalities Act only empowers the Government to make appointments of commissioners and rule 30 extends the Madras Civil Services (Classification, Control and Appeal) Rules to Government servants serving as commissioners of municipalities. They do not in any way solve the problem confronting me. It is true that in response to a notification calling for applications from persons in active Government service or Local Fund service the petitioner applied for appointment as third or fourth grade commissioner in the scale of Rs. 120-9/2-165 and 100-5/2-120 respectively, and he was appointed fourth grade commissioner by the Government. Subsequently, he was promoted to the third and second grade. But this does not imply that his service as commissioner is service of the State in which case alone the salary drawn by him as commissioner will be taken into account in fixing the pension. It is evident from S. 12C(6) that the commissioner is paid out of the municipal fund such salary and allowances as might be fixed from time to time by Government. It is only an employee who receives his pay from the revenues of the Government that could be said to be in service of the Government. There can therefore be no scope for bringing the municipal commissioner within the connotation of 'service of State.' The appointment of Government servants as municipal commissioners is tantamount to transfer to foreign service and the argument of the learned counsel for the petitioner that since there is no order of transfer or an order placing the services of these Government servants at the disposal of the council to be employed by it for purposes of the Act under S.77(1) of the District Municipalities Act, it shall be deemed to be a new appointment, could not be sustained. Surely, it is a transfer of services of a Government servant to municipal councils. Any appointment to a post should come either within the category of promotion or transfer from one service to another or a fresh appointment. It cannot fall within the last category, for he could not have the benefit of the pension he now claims, nor does he seek to put it on that basis. The learned counsel also not attempt to bring it within the meaning of promotion. The only alternative then is transfer from the service of Government to municipal service.That such service is not Government service but foreign service appears from rule 9(7) of the Fundamental Rules which defines foreign service as service in which a Government servant receives his substantive pay with the sanction of the Government (a) from any source other than the revenues of the Governor-General in Council or of a province or the Railway Fund (when established), or (b) from a company working a State railway.
5. Another provisions which is relevant in this connexion is Art. 33 of Madras Pension Code. 'Local Fund' denotes :
'(1) revenue administered by bodies which by law or rule having force of law come under the control of Government whether in regard to the proceedings generally, or to specific matters such as the sanctioning of their budgets, sanction to the creation or filling up of particular appointments, the enactment of leave, pension or similar rules;
(2) the revenues of any body which may be specially notified by the Government of India as such.'
6. Indisputably municipality falls within the meaning of foreign service, even if there is any doubt in this regard to the applicability of Art. 33.
7. Rule 129 of the Fundamental Rules enacts that the 'transfer of Government servants to service under local funds which are not administered by Government will be regulated by rules in Chap. XII.' Mr. Chandrasekhara Sastri submits that Chap. XII is inapplicable to municipal commissioners on the contention that the office of municipal commissioner is administered by the Government as contemplated by the same rules. This is sought to be strengthened by reference to Art. 750 or 803 of the Civil Service Regulations. Article 750 divides foreign service into two kinds :
First : The service of an officer transferred to service under an employer who is not under the orders of Government and is allowed while in such service to maintain his claim to pension or to leave and pension in the same way as if he were still in the service of Government.Examples : Officers lent to Egypt, to an Indian State, a railway company, a port trust, a municipality, a district board or other local fund.
Second : The service of an officer employed in connexion with the management by Government of estates or funds which they have taken under their control or received in trust, and paid from the revenues of such estates or from such funds. The service must be strictly connected with the management by Government, and appointment existing apart from, or continuing after relinquishment of, Government control, can be made only under the conditions of foreign service of the first kind.
Examples : Administrators of Indian States under direct management, managers of Courts of Wards' estates.'
8. Article 803 says :
'An officer who is in qualifying service under Government may be transferred by the Local Government to service under a local fund under the same limitations and conditions as are applicable to transfers to foreign service. It the establishments are fixed and controlled by Government in the same way as Government establishments, the limitations are those applicable to foreign service of the second kind; otherwise they are those of foreign service of the first kind.'
9. The point for consideration is whether the commissioner of municipality falls under the first or second category enumerated both in Arts. 750 and 803 of the Civil Service Regulations. On the language of Art. 750, there is no room for the contention that this category of officers comes within the purview of the second division. In order to attract it, the officers should be employed in an establishment directly managed by the Government. It cannot be postulated that a municipality is managed by the Government. The municipalities are autonomous bodies though the Government has some control over them and they are not under the orders of Government. In fact, one of the examples given under the first kind is officers lent to a municipality. That being the case, they are governed by conditions applicable to foreign service. Hence, municipal commissioners come within the operation of the provisions of Chap. XII of the Fundamental Rules. It is not out of place to allude in this context to Para. 3 of the notification in response to which the petitioner made the application for appointment. According to it, the appointment of Government servants as commissioners will be treated as transfers to foreign service and local fund an municipal servants will be required to retain a lien on their substantive appointment, if any. Rule 116 affords the basis for the determination of pension of Government servants in foreign service. The rate of contribution payable on account of pension and leave-salary was prescribed by a resolution of the Government of India, Finance Department, dated 11 February, 1949, under rule 116. The general principles on which the revised rates have been calculated are set out in the second paragraph of the resolution. The relevant paragraph of that paragraph is in the following terms :-
'The pensionary benefit admissible to a member of a Provincial Subordinate Service has been taken to be one-half of the maximum pay of the grade substantively held by him in Government service. The reason for calculating the rates of contribution in respect of members of these two classes of services in a manner different from that adopted in the case of other services is that in their case pension is not subject to any fixed maximum.'
10. Thus, the criterion in fixing the pension is the maximum pay of the post substantively held by him in Government service and not the pay drawn by the officer in foreign service. The pay received by him in such foreign service does not count for purposes of pension.
11. It follows that the order sought to be impeached is not violative of any principles governing the payment of pensions. On the other hand, it is in accordance with the rules applicable to such cases. This view of mine is in accordance with the opinion expressed by Justice Rajagopalan of the Madras High Court in W.P. No. 891 of 1953.
12. For all the aforesaid reasons, this writ petition is dismissed without costs.