The main legal point established is that the power of transfer on deputation is vested with the State Government under Section 58(5) of the 1956 Act, subject to specific conditions outlined in Section 58(6) to protect the service conditions of the transferred employee.

Sheel Nagu, J.

1. This petition under Article 226 of the Constitution of India assails order dated 04/02/2015 (Annexure P-1) passed by Additional Secretary, Govt. of Madhya Pradesh, Urban Development and Environment Department, Bhopal, whereby, invoking the provisions of section 58(5) r/w section 56(6) of M.P. Municipal Corporation Adhiniyam, 1956 (1956 Act for brevity), the petitioner being Assistant Engineer has been transferred on deputation from Municipal Corporation, Gwalior to Municipal Corporation, Ujjain.

2. Learned counsel for the rival parties are heard on the question of admission.

3. The foundational factual matrix attending this case are that the petitioner holds the substantive post of Assistant Engineer at Municipal Corporation, Gwalior where he had been inducted in this cadre. Thus, the Municipal Corporation Gwalior is his parent Corporation and by the impugned transfer order the petitioner has been transferred from Municipal Corporation, Gwalior to Municipal Corporation, Ujjain.

4. Learned counsel for the petitioner assailing the above said order raised singular contention that in the cadre of Assistant Engineer the concept of transfer on deputation is foreign to the recruitment rules which prescribes only two modes for filling up the vacancy in this cadre. The first being direct recruitment and the other promotion. Referring to Schedule (I) r/w Rule 3 & 4 of M.P. Municipal Corporation (Appointment and Condition of Service of Officer and Servant) Rules 2000 (2000 Rules for brevity) provides for filling up post in the cadre of Assistant Engineer, 25 % by direct recruitment and remaining 75% by promotion. It is pointed out that column No. 5 of the said Schedule (I) pertains to filling up of post by deputation in the cadre of Assistant Engineer is left blank. Meaning thereby, that no induction into the cadre of Assistant Engineer can take place by way of deputation. On the anvil of this legal background, the legality and validity of impugned order is challenged.

4.1. Learned counsel for the petitioner further submits on the factual aspect that by earlier order dated 30.10.2014 vide Annexure P-6, the petitioner was transferred as Assistant Engineer from Municipal Corporation, Gwalior to Municipal Corporation, Ujjain in the same capacity and the said order on being challenged in W.P. No. 6826/2014 was stayed vide order dated 10.11.2014 on the ground that since this transfer of the petitioner was a transfer simplicitor and not on deputation, the same is impermissible under the provisions of section 58(5) & (6) of 1956 Act. It is further submitted that W.P. No. 6826/2014 is still pending and yet the impugned order dated 04.02.2015 has been passed again.

5. Considering the material placed on record and the submission made by learned counsel for the rival parties, the glaring aspect of the case which comes to the forefront is that learned counsel for the petitioner is under a misplaced impression that the provision contained in Rule 3 & 4 and Schedule (I) of 2000 Rules pertain to induction into the cadre of Assistant Engineer.

5.1. Schedule (I) appended to Rules 2000 derives strength from Rule 3 & 4 which pertains to scale of pay, classification and number of post including in the Municipal Corporation services and the method of recruitment. Neither Rule 3 nor Rule 4 and nor Schedule (I) pertain to transfer and, therefore, is of no avail to the petitioner.

In the present case, which exclusively deals with transfer the issue is governed by Section 58 of 1956 Act and Rule 14 of 2000 Rules provides thus :-

"14. Transfer :- Subject to the provisions of Section 58 of the Act, the State Government may transfer any officer or employee of the Corporation from one Corporation to another provided that such officer or employee who is in any Corporation for more than 3 years shall necessarily be transferred by the State Government."

5.2. Since the above said Rule 14 of 2000 Rules is made subject to provision of section 58 of 1956