PRADEEP KUMAR DWIVEDI Vs. STATE OF M.P

JUDGEMENT

(1.) THE petitioner, a Chief Municipal Officer, has filed this petition challenging the order dated 01st March, 2014 whereby he is transferred from the post of Chief Municipal Officer ( CMO) to the post of Project Officer, District Urban Development Authority (DUDA), Raisen, M.P.

(2.) IT is urged by the petitioner that he is holding the substantive post of Chief Municipal Officer Grade -2 in M.P. Municipal Service (Executive). It is stated that petitioner's work and conduct is up to the mark and his transfer is not arising out of any administrative exigency. Petitioner has not completed three years of tenure before his transfer by impugned order. Petitioner is transferred outside the cadre to DUDA, a society registered under the Society Registration Act. This transfer is impermissible and runs contrary to section 86(4) of M.P. Municipality Act, 1961.

(3.) SHRI Vivek Jain, learned counsel for the petitioner submits that State Government can transfer any member of State Municipal Service from one council to another council. Power cannot be exercised beyond the scope of section 86(4) of the Act. In addition, it is urged that before sending the petitioner on deputation, his consent is not obtained. There is no post like CMO in DUDA and therefore, this deputation / transfer is impermissible. In support of his contention, he relied on (U.P. Gram Panchayat Adhikari Sangh and Others Vs. Daya Ram Saroj and Others, 2007 2 SCC 138); (Umapati Choudhary Vs. State of Bihar and another, 1999 4 SCC 659) and (Prasar Bharti and others Vs. Amarjeet Singh and others, 2007 9 SCC 539). By placing reliance on three judges Bench judgment of Andra Pradesh High Court in the WP 22042/2003, it is submitted that fundamental rules are the rules governing all general conditions like pay, leave, deputation, retirement, dismissal, removal and suspension. If there are special rules governing a particular service and in the event of conflict with fundamental rules, special rules would prevail. This argument is advanced in support of the contention that as per section 86(4), power to transfer is limited to another municipality and therefore, fundamental rules is of no assistance to the other side.