VINUBHAI JATASHANKER DAVE Vs. DHOLKA NAGAR PALIKA

JUDGEMENT

(1.) The petitioner who was an Octroi Inspector in Dholka Nagarpalika respondent No. 1 herein has filed this petition challenging the order Annexure `B dated July 23 1983 by which he has been transferred from the post of Octroi Inspector to the post of Tax-Clerk.

(2.) It appears from the affidavit of the Chief Officer of respondent No. 1 that the petitioner was transferred from the post of Octroi Inspector to the post of Tax-Clerk by the Executive Committee of respondent No. 2 with the concurrence of the Chairman of the Octroi Committee. President of respondent No. 1 was not consulted at all before transferring the petitioner as stated above. One of the grievances made by the petitioner in this petition is that it is the President alone who has power to transfer the employee of respondent No. 1 from one department to another and therefore the order of transfer passed under the directions of the Managing Committee of respondent No. 1 even if it is with the concurrence of the Chairman of the Managing Committee is not legal. Since in my opinion the petitioner must succeed on this contention it is not necessary for me to refer to or deal with other grounds raised in this petition.

(3.) Section 45 of the Gujarat Municipalities Act 1963 under which respondent No. 1 Nagarpalika is constituted deals with the functions of the President of a Nagarpalika (municipality). Clause (c) of this section provides: It shall be the duty of the president of a municipality to exercise supervision and control over the acts and proceedings of all officers and servants of the municipality in matters of executive administration and in matters concerning the accounts and records of the municipality; and subject to the rules of the municipality for the time being in force and for reasons to be recorded in writing to revise set aside or modify any order of the chief officer relating to the service of the said officers and servants and their pay privileges and allowances. Rule 68 of the Rules called Dholka Municipal Rules provides that the officers and servants of respondent No. 1 Municipality are under the general control of the President. It would therefore appear that it is the function of the President of respondent No. 1 to exercise supervision and control over the officers and other employees of respondent No. 1. Officers and employees of respondent No. 1 are thus under the control of the President. There is therefore no doubt that it is the President alone who could have transferred the petitioners from the post of Octroi Inspector to any other post. All that the Octroi Committee or the Managing Committee could have done was to propose the transfer of the petitioner to the President but it was for the President to ultimately decide whether or not to transfer the petitioner. As pointed out above the petitioners transfer has been made under the instructions of the Executive Committee with the concurrence of the Chairman of the Octroi Committee. The President has not been brought into the picture at all in this transfer. This is evident from the affidavit of the President himself. In fact the President by his order Annexure `I to his affidavit-in-reply cancelled the impugned order of transfer issued by the Chief Officer of respondent No. 1. The Chief Officer is legally bound to obey the order of the President. I am however told that inspite of the order passed by the President the petitioner is not allowed to function as Octroi Inspector. In view of the above discussion the impugned order of transfer must be held to be illegal. It therefore deserves to be struck down.