LAKHANLAL SAHU Vs. STATE OF M P

JUDGEMENT

(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. 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.