SHANKARLAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THE petitioners who are six in number are employees of the Municipal Council, Sagar and are employed as lecturers and teachers in Municipal Higher Secondary Schools of Sagar. By orders of the State Government issued in June 1968 which are exhibited as Annexure C, D and E, the petitioners have been transferred from Sagar to different places in schools belonging to other Municipal Councils. The petitioners are aggrieved by these transfers and have filed this petition under Article 226 of the Constitution for issuance of proper writs to have the orders of transfers quashed.

(2.) THE only point agreed by the learned counsel for the petitioners is that the State Government has no power of transferring lecturers and teachers of one Municipal Council to another Municipal Council In reply the learned Government Advocate has supported the orders under section 94 (7) of the Madhya Pradesh Municipalities Act, 1961.

(3.) THE power of the State Government under sub -section (7) of transferring employees of one Municipal Council to another Council is limited to "any officer or servant mentioned in sub -sections (1) and (2)." Subsection (1) relates to Councils having an income of five lakhs or more. In terms of the sub -section, such Councils shall appoint a Revenue Officer and an Accounts Officer and may appoint such other officers and servants as may be necessary for the efficient discharge of their duties. Sub -Section (2) deals with Councils which do not fall under subsection (1) i.e. annual income of which is less than five lakhs. Every Council falling under sub -section (2) shall appoint a Sanitary Inspector, an Overseer, a Revenue Inspector and an Accountant and may appoint such other officers and servants 3S may be necessary and proper for the efficient discharge of its duties. Sub -Sections (1) and (2) thus enumerate the officers and servants which the Councils shall appoint. In addition to enumerated officers, the Councils may appoint such other officers and servants which may be necessary for the efficient discharge of their duties. The enumerated officers and servants are Revenue Officers, Accounts Officer, Sanitary Inspector, Overseer, Revenue Inspector and Accountant. In our opinion these are the only officers mentioned in subsections. (1) and (2) and "other officers and servants" which a Council may appoint for the efficient discharge of its duties are not the officers and servants mentioned in the sub -sections. The word "mentioned" in the context of sub -section (7) means 'named'. Officers and servants not specifically enumerated cannot be said to be named or mentioned. This construction is supported by other considerations. Firstly, if sub -section (7) applies even to such officers and servants which are not enumerated in subsections (1) and (2) but which Councils may appoint for the efficient discharge of their duties then the power of" transfer will be available for transferring any officer or servant in receipt of total emoluments exceeding one hundred rupees and the words "mentioned in sub -sections (1) and (2)" as they occur in subsection (7) will become otiose or redundant. Secondly, the officers and servants enumerated in sub -sections (1) and (2) are again enumerated in subsection (4) and the appointment and dismissal of these officers and servants is subject to approval of the State Government. The enumerated categories of officers are thus treated differently from other officers and servants and it is reasonable to infer that the Legislature intended by subsection (7) to confer on the State Government power of transfer only in respect of enumerated categories of officers and servants. Lastly, the predecessor Act viz. the C.P. and Berar Municipalities Act, 1922 in Section 259 conferred on the State Government power to transfer "any officer or servant" whereas the present Act in section 94 (7) by using the language' 'any officer or servant mentioned in subsections (1) and (2)" evinces an intention to restrict the power of transfer and not to make it available for "any officer or servant" not mentioned in those sub -sections. In our opinion the power of transfer under section 94 (7) is available only in respect of officers and servants specifically named or enumerated in section 94 (1) and (2), and not in respect of other officers and servants which a Council may appoint.