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Judgment
The petitioner herein takes exception to the impugned order dated 24.11.2021 (Annexure PÂ1) passed by the State Government/respondent No.1
by which his services have been transferred from Municipal Corporation, Raigarh to Nagar Panchayat, Chandrapur.
The petitioner herein is working as SubÂEngineer in Municipal Corporation, Raigarh and his parent Corporation is also Municipal Corporation,
Raigarh. It is the case of the petitioner that his parent Corporation being Municipal Corporation, Raigarh, he cannot be transferred to Nagar Panchayat
constituted under the Chhattisgarh Municipalities Act, 1961 (hereinafter called as 'the Act of 1961') and at the best, he can be transferred to any other
Municipal Corporation on deputation under Section 58(5) of the Municipal Corporation Act, 1956 (hereinafter called as 'Act of 1956') and that too
subject to the provisions contained in Section 58(6) of the Act of 1956 by which he would have lien on the post held in Parent Municipal Corporation
and he will also be entitled for deputation allowance at such rate as the State Government may by general order specify and he will be governed by
such other terms and conditions including disciplinary control as the State Government may, by general or special order specify and as such, in the
instant case, the petitioner has not been transferred to any other Municipal Corporation by complying the provisions contained in subÂsection (6) of
Section 58 of the Act of 1956, but he has been transferred to Nagar Panchayat, Chandrapur, which is unsustainable and violative of the provisions
contained in Section 58(5) & (6) of the Act of 1956 and therefore, the impugned order dated 24.11.2021 (Annexure PÂ1) passed by respondent No.1
is liable to be set aside. Apart from that, it is also violative of transfer policy issued by the State Government as no approval has been obtained from
coordination from the competent authority and as such, it is liable to be setÂaside.
Respondents No.1 and 2 have filed their return stating that transfer order has been passed on the ground of administrative exigency, it is strictly in
accordance with law and it is not violative of the provisions contained in Section 58(5) & (6) of the Act of 1956 and as such, the writ petition is liable
to be dismissed.
Mr.Vikas Dubey, learned counsel for the petitioner, would submit that the petitioner being the officer of Municipal Corporation, Raigarh (parent
Corporation) had a lien on the post of SubÂEngineer in the said Corporation and he can be transferred by virtue of the provisions contained in Section
58(5) of the Act of 1956 to any other Municipal Corporation on deputation and that too subject to the provisions contained in subÂsection (6) of
Section 58 of the Act of 1956 and he will be entitled for deputation allowance, but in any case, he cannot be transferred to Nagar Panchayat
constituted under the provisions of the Act of 1961. Therefore, the impugned order is liable to be set aside.
On the other hand, Mr.Hariom Rai, learned Panel Lawyer appearing for respondents No.1 and 2/State, would submit that on finding administrative
exigency the petitioner's services has been transferred to Nagar Panchayat, Chandrapur, which is strictly in accordance with law and it is not violative
of any provisions including Section 58(5) & (6) of the Act of 1956 and therefore, the writ petition is liable to be dismissed.
Mr.H.B.Agrawal, learned Senior Counsel with Mrs.Swati Agrawal, learned counsel for respondent No.3, would submit that transfer order has been
passed by the State Government, therefore, Municipal Corporation has no say on the order of transfer passed by the State Government.
None present for respondent No.4.
I have heard learned counsels appearing for the parties, considered their rival submissions made hereinÂabove and also went through the records
with utmost circumspection.
The question for consideration would be, whether the State Government has power and jurisdiction to transfer the services of the petitioner from
Municipal Corporation, Raigarh to Nagar Panchayat, Chandrapur constituted under the provisions of the Act of 1961.
In order to answer the plea raised at the Bar, it would be appropriate to notice the provisions contained in Section 58(5) of the Act of 1956, which
states as under:Â
“58. Appointment and conditions of service of Corporation Officers and servants.Â
(1) to (4) xxx xxx xxx
(5) Notwithstanding anything contained in this Act or any rules or byeÂlaws made thereunder, the State Government may, subject to the conditions
specified in subÂsection (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 subÂsection.â€
A careful perusal of the aforesaid provisions would show that the State Government has been empowered to transfer any officer or servant of the
Municipal Corporation to any other Municipal Corporation only on deputation and rights of the officer or servant so transferred under subÂsection
(5) would be subject to conditions prescribed in sub section (6) of Section 58 of the Act of 1956, which states as under:Â
“(6) The officer or servant transferred under subÂsection (5) shall:Â
(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 allowance at such rate as the State Government may be general order specify; and
(d) be governed by such other terms conditions including disciplinary control as the State Government may, by general or special order, specify.â€
SubÂsection (6) of Section 58 of the Act of 1956 clearly provides that the officer or servant so transferred under subÂsection (5) shall have his
lien on the post held in the parent Corporation and he will 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 and he will be entitled to deputation allowance at such rate as the State Government
may be general order specify.
From the aforesaid provision, it clearly appears that the State Government is empowered to transfer the officer or servant working in one
Municipal Corporation to other Municipal Corporation only on deputation and subject to rights and privileges incorporated in subÂsection (6) of Section
58 of the Act of 1956 retaining the lien on the post held in the parent Corporation and his pay and allowances are also been preserved and he will be
entitled for deputation allowance. Section 58(5) of the Act of 1956 nowhere empowers the State Government to transfer any officer or servant of
Municipal Corporation to other Municipality (Municipal Council or Nagar Panchayat as the case may be) constituted under the provisions of the Act
of 1961, as such, the State Government has no power and jurisdiction to transfer the officer and servant of Municipal Corporation to any other
Municipalities (Municipal Council or Nagar Panchayat).
In the matter of Indore Nagar Nigam Karmachari Congress v. State Of Madhya Pradesh and Anr. 1998 (1) MPLJ 449 the Madhya Pradesh High
Court while upholding the provisions contained in Section 58(5) & (6) of the Act of 1956 held that while transferring the employee from one Municipal
Corporation to another Municipal Corporation, there should be a valid reason. The Madhya Pradesh High Court further held that since the lien of
incumbent is kept in the parent Corporation, therefore, tenure or the period of lien should be specified and it should not be for all time to come. The
State Government should also exercise this power very sparingly in exceptional case as held by the Supreme Court in the matter of State of Madhya
Pradesh v. Shankerlal AIR 1980 SC 643.
As such, no such power has been conferred to the State Government to transfer any officer or servant of Municipal Corporation to any
Municipality or Nagar Panchayat so constituted under the Act of 1961. In absence of any enabling provisions in the Act of 1956 or in the
Municipalities Act, 1961 empowering the State Government to transfer any officer or servant from Municipal Corporation to Municipal Council or
Nagar Panchayat, the impugned order of transfer of the petitioner from Municipal Corporation, Raigarh to Nagar Panchayat, Chandrapur is liable to
be quashed.
Accordingly, the impugned order dated 24.11.2021 (Annexure PÂ1) to the extent of the petitioner passed by respondent No.1 transferring the
services of the petitioner from Municipal Corporation, Raigarh to Nagar Panchayat, Chandrapur is hereby quashed.
The writ petition is allowed to the extent indicated hereinÂabove. No order as to cost(s).