( 1. ) THIS is a petition under Arts. 226 and 227 of the Constitution of india by which the petitioner who was appointed as Assistant Health Officer, Municipal corporation, Indore, challenges his transfer order from Municipal Corporation Indore to Municipal Corporation Ujjain, seeking relief to the effect that his transfer order contained in Document-8, be quashed on the ground that the provisions of sub-sections (5) and (6) of section 58 of Municipal Corporation Act, 1956 (hereinafter referred to as the act) be declared ultra vires of the Constitution and, therefore, by issuing a writ in the nature of prohibition, the provisions of sub-sections (5) and (6) of section 58 of the act, be not given effect to.

( 2. ) IN short, the case of the petitioner is that he was appointed as Assistant Health officer in the scale of pay Rs. 500 to 1150 with effect from 28-4-75 vide Order No. 30 dated 26-4-75 (Document No. 2) with all other Municipal Corporation Service benefits. The petitioners appointment was made by the respondent No. 2, Municipal corporation, Indore after obtaining the concurrence for appointment from the respondent No. 1, the State of Madhya Pradesh vide Memo. No. 1561-18-A-75 dated 18-4-1975. This appointment was on ad hoc basis. However, after the advertisement of the post by the Public Service Commission the petitioner was selected by the Commission and as such his appointment to the post of the Assistant Health Officer, Municipal corporation, Indore was regularised by order dated 29-3-1977. After his selection by the public Service Commission, the petitioner was appointed on probation by order dated 27-8-77. However, it is alleged that the petitioners work being satisfactory and commendable, therefore, by order dated 5-4-78, he was confirmed on the post of assistant Health Officer with effect from 18-3-1978.

( 3. ) THE petitioners case is that the respondent No. 2, Municipal Corporation, indore was established long back even before merger when Indore was a princely State. However, after the independence and merger of the States, when Madhya Bharat was formed as Class b State, the administration of Municipal Corporation, Indore was being governed under the Madhya Bharat Municipal Corporation Act and after the formation of the larger Madhya Pradesh, after Reorganisation, the Municipal corporation Act, 1956 was made applicable, according to which the petitioners services are governed.

( 4. ) ACCORDING to the petitioner, the controversy, as has been raised in this petition, relates to the amendment to section 58 of the Act by M. P. Municipal Corporation (Amendment) Act, 1982, according to which sub-section

(5) and sub-section (6) have been added to section 58, which read thus :-"sub-section (5)- Notwithstanding anything contained in this Act or any rules or bye-laws made thereunder, the State Government may, subject to the conditions specified in sub-section (6), transfer on deputation any officer or servant of a Municipal Corporation carrying a maximum scale of pay exceeding Rs. 400/- 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 sub-section. "

"sub-section (6)- The Officer or servant transferred under sub-section (5)shall-

(a) has 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 by general order specify, and (d) be governed by such other terms and conditions including disciplinary control as the State Government may, by general or special order, specify. "

( 5. ) BY virtue of these sub-sections (5) and (6) of S. 58 of the Act, the State government has now been empowered to transfer the officers or servants