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Madhya Pradesh High Court · body

2001 DIGILAW 420 (MP)

Lakhanlal Sahu v. State of M. P.

2001-05-14

S.K.KULSHRESTHA

body2001
Judgment ( 1. ) BY this petition, the petitioner has challenged the order dated 7-12-2000 (Annexure P-10), by which he has been transferred in the same capacity till further orders on deputation to Municipal Corporation, Gwalior from Municipal Corporation, Sagar. Initially he had challenged his transfer on the ground that as the petitioner was officiating on the post of Executive Engineer and was in receipt of pay for the said post, the transfer of the petitioner as Assistant Engineer had the effect of lowering his status and putting him in a disadvantageous position in respect of pay and allowances but later by an amendment it has also been challenged on the ground that if Sub-sections (5) and (6) of Section 58 of the M. P. Municipal Corporation Act, 1956 (hereinafter referred to as the act) are read conjointly, the State Government can order such transfers without the consent of the employee concerned of the Corporation only in exceptional cases. Reference has also been made to a Full Bench decision of this Court in Indore N. N. K. Congress and Anr. v. State of Madhya Pradesh and Anr. ( 1998 (1) MPLJ 449 = 1998 (1) JLJ 326 ) that the power is to be exercised with caution and sparingly in exceptional cases only. ( 2. ) AS per the case of the petitioner, he was initially appointed as Sub Engineer in the Municipal Corporation, Sagar. In 1992-93, he was promoted as Assistant Engineer. For promotion to the post of Executive Engineer the qualifying service is 5 years in the Grade of Assistant Engineer. According to the petitioner by order dated 31-7-1997 (Annexure-A/1), he was directed to look after the work of Executive Engineer and later he was given charge of the post of Commissioner by letter dated 3040-1999 (Annexure-A/2 ). The petitioner has averred that a Departmental Promotion Committee was constituted for considering the cases of promotion of eligible candidates to the post of Executive Engineer and on the recommendation of this Committee, the Mayor in Council took a decision to appoint the petitioner on the post of Executive Engineer and to grant him pay scale applicable to the said post. A copy of this decision has been filed by the petitioner as Annexure-P/6. A copy of this decision has been filed by the petitioner as Annexure-P/6. During the period of his incumbency as Executive Engineer, whenever the post of Commissioner became vacant on account of the regular incumbent proceeding on leave or for any other reason, he was also placed in charge of that post being the senior most person in the Corporation. The petitioner has pointed out that the State Government without first according sanction for appointment of the petitioner on the post of Executive Engineer in the Municipal Corporation, Sagar, passed the order dated 7-12-2000, transferring the petitioner as Assistant Engineer to Municipal Corporation, Gwalior on deputation. The petitioner has, therefore, challenged this order on the ground that firstly the order has the effect of lowering the status from Executive Engineer to Assistant Engineer and putting him in a disadvantageous position in respect of pay and allowances and secondly, the order has not been passed in consonance with the provisions of Sub-sections (5) and (6) of Section 58 of the Act in accordance with the guidelines laid down for exercise of the power by the Full Bench in Indore N. N. K. Congress (supra ). ( 3. ) THE Respondent No. 1 State of Madhya Pradesh has filed the Return to oppugn the contentions of the petitioner and has submitted that the only aversion initially expressed by the petitioner against the transfer was that he was being transferred on a post lower than the one he holds in the parent Corporation which was groundless in that the Government had not accorded approval to the said promotion as required and the ground now introduced by amendment in assailing the validity of the transfer order is also unsustainable as the Government has the power under Sub-section (5) of Section 58 to transfer an employee from one Municipal Corporation to another on deputation for which it is not necessary to consult either the Corporation or the Officer or servant concerned before passing the order. It has further been pointed out that since the petitioner in substance is only an Assistant Engineer as his promotion to the post of Executive Engineer has not been approved by the State Government, his transfer to Municipal Corporation, Gwalior on deputation is not disadvantageous as he shall be entitled to the emoluments he is entitled to receive in his parent Corporation on the post of Assistant Engineer which the petitioner presently holds in the said Corporation. The Respondent No. 2 has also filed a Return stating that the promotion granted to the petitioner has been cancelled by order dated 15-12-2000 in view of the fact that the Government had declined approval by memo dated 4-1-2000 and it has further been directed that he shall be entitled only to the pay scale of the post of Assistant Engineer. Reference has also been made to memo Annexure-R-II/3 by which guidance has been sought from the State Government with regard to the recovery of the amount paid to the petitioner in the higher pay scale of the post of Executive Engineer during the period prior to the order Annexure-R-II/2. ( 4. ) THE submission of the learned counsel for the petitioner is that it is not disputed even by the Respondents that the petitioner had been promoted to the post of Executive Engineer and granted the pay scale of the said post by a resolution of Mayor in Council and the matter had also been referred to the State Government for approval as required under Section 58 of the Act. Learned counsel has, therefore, urged that where it was known to the Government that the petitioner was holding a higher post of Executive Engineer and was in receipt of salary in the pay scale applicable to the said post, the petitioner could not have been transferred by the Government on the post of Assistant Engineer lower in rank and in emoluments, both. Learned counsel for the Respondents, per contra, have contended that the petitioner cannot seek protection of post or pay of a post to which he was illegally appointed in the parent Municipal Corporation without the prior confirmation of the State Government as required under Section 58 of the Act. Since the above controversy devolves on the contruction of the provisions of Section 58 of the Act, it would be advantageous to reproduce the said section which reads as under:-" 58. Since the above controversy devolves on the contruction of the provisions of Section 58 of the Act, it would be advantageous to reproduce the said section which reads as under:-" 58. Appointment and condition of service of Corporation Officers and servants.-- (1) Subject to the rules made by the State Government in respect of the set-up, Strength, Recruitment, Appointment, Pay-scales, Allowances and other conditions of service of Officers and servants of the Corporation, the Corporation shall appoint such Officers and servants as may be necessary for the efficient performance of the functions of the Corporation: Provided that, (i) the power of appointing any person on a municipal post which carries a maximum scale of pay as the State Government may, from time to time, by an order in writing specify, shall vest in the Mayor in Council or the Commissioner; (ii) any appointment made within his power by the Commissioner shall be reported for information to the Mayor in Council; (iii) every appointment to be made by the Mayor in Council shall be subject to the prior confirmation of the State Government. The decision of the State Government in this behalf shall be final. (2) Notwithstanding anything contained in Sub-section (1), in emergent situations, the Mayor in Council may make adhoc appointments for a period not exceeding six months, with prior permission of the State Government. (3) The State Government may depute to any post under the Corporation carrying maximum scale of pay (as the State Government may, from time to time, by an order in writing specify) such servants of the State Government as it may consider necessary. (4) The terms and conditions of deputation of servants of the State Government including disciplinary control shall be such as may be prescribed. (5) Notwithstanding anything contained in this Act or any rules of bye laws made thereunder, the State Government may, subject to the conditions specified in Sub-section (6), transfer on deputation any officer or servant of a Municipal Corporation to any other Municipal Corporation and it shall not be necessary for the State Government to consult either the Corporation or the Officer or Servant concerned before passing an order of transfer on deputation under this sub-section. (6) The officer or servant transferred under Sub-section (5) shall,- (a) have his lien on the post held in the parent Corporation; (b) not be put to disadvantageous position in respect of pay and allowances which he would have been entitled to had he continued in the parent Corporation; (c) be entitled to deputation allowances at such rate as the State Government may by general order specify; and (d) be governed by such other terms and conditions including disciplinary control as the State Government may, by general or special order, specify. " ( 5. ) IT is clear from proviso (iii) to Sub-section (1) of Section 58 that every appointment to be made by the Mayor in Council shall be subject to the prior confirmation of the State Government and the decision of the State Government in this behalf shall be final. Even for making a stop gap arrangement under Sub-section (2) of Section 58 in emergent situation, prior permission of the State Government is necessary. Thus, in either case the appointment is permissible only if there is prior confirmation or prior permission of the State Government for the appointment to be made by the Mayor in Council. It is not the case of the petitioner that his appointment was made by the Council with the prior confirmation of the State Government nor is it a case where the appointment was made to meet an emergent situation with prior permission of the State Government. A bare reading of Sub-section (1) of Section 58 makes it luculent that no appointment can be made by Mayor in Council without the prior confirmation of the State Government or its prior permission, as the case may be. The petitioner cannot, therefore, claim any advantage with regard to the protection of post of Executive Engineer, or the emoluments attached to the post, under Sub-section (6) of Section 58 on being transferred under Sub-section (5) thereof. The provisions of Sub-section (6) are only as regards the post legitimately held by an incumbent and the emoluments attached to it and would not encompass any illegal or irregular promotion or grant of pay scale of higher post without the prior confirmation or prior permission of the State Government to enable the incumbent to claim protection of any illegal, unjust and undeserved advantage of which he has recipient in the parent Corporation. Therefore, it cannot be said that the order of transfer is in violation of Sub-section (6) of Section 58 as it puts the petitioner to a disadvantageous position in respect of post, pay and allowances. In fact the position of the petitioner is to be seen only on the post of Assistant Engineer ignoring his appointment by the Mayor in Council on the post of Executive Engineer by promotion which suffers from the patent illegality of being without the prior confirmation of the State Government as required under Clause (iii) of the proviso to Sub-section (1) of Section 58. ( 6. ) THE next contention of the learned counsel is that it has already been clarified by a Full Bench of this Court while dealing with the challenge to the vires of Section 58 (5) (6) in Indore N. N. K. Congress (supra) that this power should be exercised with great caution and while transferring the employee from one Corporation to another, there should be a valid reason and tenure or the period of such deputation should also be specified so that such transfers do not perpetuate to keep the employee away from his parent Corporation for all times to come. It has also been observed that the State Government should exercise this power very sparingly and in exceptional cases and reference has been made to the decision of the Supreme Court in State of Madhya Pradesh v. Shankar Lal ( AIR 1980 SC 643 ). Learned counsel for the petitioner contends that nothing has been stated in the Return of the first respondent in justification of the transfer or to indicate any exceptional circumstance for exercise of this power. Learned Govt. Advocate has, on the contrary, argued that since the petitioner was challenging the transfer order only on the ground that it would lower his status and be disadvantageous in pay and allowances and the petitioner, as duly demonstrated, is only an Assistant Engineer entitled to salary in the pay scale of the said post, this contention advanced as an after-thought taking inspiration from the decision in Indore N. N. K. Congress (supra) deserves to be rejected. It has also been pointed out that in exercise of the power under Section 433 read with Section 58 of the Act, the Government has framed Rules called the "madhya Pradesh Municipal Corporations (Appointment and Conditions of Service of Officers and Servants) Rules, 2000 and Rule 14 makes transfer mandatory in case an officer or employee has put in more than 3 years service in any Corporation. Learned Govt. Advocate, therefore, contends that in view of the said Rules, the requirement of sparing exercise of the power stands dispensed with and superseded in case of persons like the petitioner who have put in more than 3 years in one Corporation. ( 7. ) RULE 14 reads as under :- "14. Transfer.-- Subject to the provisions of Section 58 of the Act, the State Government may transfer any officer or employee of the Corporation from one Corporation to another provided that such officer or employee who is in any Corporation for more than 3 years shall necessarily be transferred by the State Government. " ( 8. ) WHILE it is true that the rule now makes it incumbent for the Government to transfer an Officer or employee who has put in more than 3 years in a Corporation, the power is still subject to the provisions of Section 58 of the Act, the scope whereof has already been defined by the Full Bench in Indore N. N. K. Congress. In the present case, even otherwise, the rule is not attracted as the transfer order was passed prior to the bringing into force of the said Rules. In the present case, since no justification has been offered by the Respondents for transfer of the petitioner from Sagar to Gwalior nor any exceptional circumstances have been stated warranting sparing exercise of the power, the transfer order cannot be sustained notwithstanding that it does not have the effect of demeaning the status of the petitioner or putting him to any disadvantage as regards pay and allowances. Although it is contended by the Respondents that the petitioner has not challenged the order as actuated by any malafide or arbitrariness, yet on failure of the Respondents to spell out the circumstances for exercise of the power as defined by the Full Bench in Indore N. N. K. Congress (supra), the order of transfer cannot be sustained merely because it has not been shown to be malicious. It is not clear from the Return of the Respondents as to what necessitated posting of an Assistant Engineer in Guna and the compelling circumstances which prompted the Government to transfer the petitioner especially when none has been transferred to occupy his post in Municipal Corporation. The other would be deemed to be arbitrary if it does not satisfy the test laid down by the Full Bench and the Rules subsequently notified cannot come to the rescue of the Respondents. ( 9. ) IN the result, this petition is allowed. The order Annexure-P/10 is quashed. This order shall, however, not be construed as precluding the State Government from transferring the petitioner in accordance with the said provision and the Rules.