1. This application by the Orissa Local Body Employees' Federation through its General Secretary challenges the vires of the Orissa Local Fund Service Rules, 1975, made by the State Government in exercise of powers conferred under Section 81 (2) of the Orissa Municipal Act (hereinafter referred to as the 'Act'). In particular, challenge has been raised against Rules 3 (1), 10 and 11 (1) thereof, These rules read thus:--
'3. (1) The Local Fund Service shall be constituted by the State Government as per the provision in Sub-section (1) of Section 81 of the Act, and shall include such of the posts of the Municipalities as specified by the Government from time to time by order in this behalf,
10. The Director of Municipal Administration shall have power to transfer employees of the service from one Municipality to another and, for this purpose, he shall have power to call for necessary papers like Service Book and Confidential character rolls from concerned Municipality.
11. (1) In the matter of appointment, promotion, confirmation, retirement, maintenance of Service Book and confidential Character Rolls, the provisions of the Act and Rules framed thereunder shall be applicable to the service so far as the same are not inconsistent with these rules'.
Section 81 was amended by Orissa Act 23 of 1972 and by the same Amending Act Sections 81-A, 81-B, 81-C and 81-D were inserted into the statute. Sub-section (1) of Section 81 confers power on State Government to create the Local Fund Service. Sub-section (2) provides:--
'The State Government shall, subject to the provisions of Section 392 have power to make rules to regulate the classification, methods of recruitment conditions of service, pay and allowances, discipline and conduct of the officers and servants belonging to the Local Fund Service and such rules may vest jurisdiction in relation to such service in the State Government or in such other authority or authorities as may be prescribed therein:
Sub-section (3) provides :--
'The State Government shall have power to transfer any officer or servant of the Local Fund Service working under a municipality to the service of any other municipality.'
Challenge to Rule 3 (1) is on the footing of ambiguity. Mr. Misra for the petitioner contends that the power conferred under the Rule authorises the State Government to specify the municipalities and not posts. In the counter-affidavit, it has been specifically asserted that power has been vested in the Government to specify posts and not municipalities. We think, that is the true intention and the intention of Government can be spelt out of the Rule. The power vested in the State Government is, therefore, to specify the posts of the municipalities and not specify municipalities. Viewed this way, there is no ambiguity and the Rule is not open to challenge.
Rule 10 authorises the Director of Municipal Administration to exercise the power of transfer. According to petitioner's counsel, Sub-section (3) of Section 81 authorises the State Government to exercise the power of transfer and once the statute delegated the power to the State Government it was not open to the State Govt. to re-delegate the power. We do not find any force in the argument. Sub-section (2) which deals with rule-making power clearly indicates that the State Government may prescribe an authority by the Rules to exercise the powers of the State Government, In exercise of the power under Sub-section (2), the State Government have framed Rules prescribing the Director of Municipal Administration who is Ex-officio Deputy Secretary to Government to exercise their power. The State Government is bound to exercise the power through an officer. The Deputy Secretary to Government can exercise that power on behalf of the State Government. This really is not a case of sub-delegation. The objection to Rule 10, therefore, must be overruled,
So far as Rule 11 is concerned, learned Government Advocate fairly conceded that it was badly worded. There can be no two opinions that the Rules in order to be tenable must conform to the provisions of the statute; otherwise they would be ultra vires the Act. Rules which are subordinate legislation cannot run counter to the parent statute which is the source of the Rules. Therefore, there is no scope for the provision that the Act and the Rules made thereunder would be applicable to the service so far as they would not be inconsistent with the impugned Rules.
Petitioner has not come against any particular action taken on the basis of Rule 11 (1) of, the Rules. Yet, since the vires of the Rule is assailed, it is not necessary that any concrete action under the Rule should be challenged. In our view, Rule 11 (1) must suitably be altered. We direct the State Government to make appropriate amendments to Rule 11 (1) of the Rules within three months hence.
2. The writ application is disposed of with the aforesaid direction in regard to Rule 11 (1) of the Rules, There will be no order for costs,
J.K. Mohanty, J.
3. I agree.