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1999 Supreme(MP) 1120
IN THE HIGH COURT OF MADHYA PRADESH
R.S. GARG, J.
Bihari Prasad Chandrika Prasad Tiwari – Appellant
Versus
State Of M.P. – Respondent
W.P. No. 2202 of 1999
Decided on : 16-12-1999
Advocate Appeared:
For the Appellant : Prashant Singh
For the Respondent: R. S. Jha, Ravindra Shrivastava, Sanjay Sarwate
The power to transfer employees of a Municipal Corporation vests with the State Government alone under Section 58(5) of the Municipal Corporation Act, 1956. The State Government cannot delegate this power to any other authority.
Headnote:
MUNICIPAL CORPORATION - TRANSFER OF EMPLOYEES - SECTION 58(5) OF THE MUNICIPAL CORPORATION ACT, 1956 - SECTION 76 OF THE MADHYA PRADESH NAGAR TATHA GRAM NIVESH ADHINIYAM, 1973 - POWER OF TRANSFER VESTS WITH STATE GOVERNMENT - TRANSFER ORDER PASSED BY MUNICIPAL CORPORATION WITHOUT AUTHORITY IS ILLEGAL.
Fact of the Case:
The petitioner, an employee of the Municipal Corporation, Bhilai, was transferred to Nagar Panchayat, Kumhari, by an order passed by the Municipal Corporation without any authority or law. The State Government had not issued any order of transfer or deputation of the petitioner. The petitioner challenged the transfer order.
Finding of the Court:
The Court held that the power to transfer employees of a Municipal Corporation vests with the State Government alone under Section 58(5) of the Municipal Corporation Act, 1956. The Municipal Corporation had no authority to transfer the petitioner to any other authority. The Court further held that Section 76 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973, which deals with the dissolution of Special Area Development Authorities and the vesting of their assets and liabilities in newly constituted authorities, does not give the State Government the authority to delegate its power to transfer employees to such authorities.
Issues: 1. Whether the Municipal Corporation had the authority to transfer the petitioner to Nagar Panchayat, Kumhari? 2. Whether the State Government had delegated its power to transfer employees to the Municipal Corporation?
Ratio Decidendi: The Court held that the Municipal Corporation had no authority to transfer the petitioner to Nagar Panchayat, Kumhari, as the power to transfer employees of a Municipal Corporation vests with the State Government alone under Section 58(5) of the Municipal Corporation Act, 1956. The Court further held that Section 76 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973, does not give the State Government the authority to delegate its power to transfer employees to such authorities.
Final Decision: The Court allowed the petition and directed the State Government to pay Rs. 5000/- as costs to the petitioner.
ORDER :
By notification dated 9th June, 1998, issued under section 76 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (Adhiniyam for the sake of brevity), the State Government declared that the Special Area Development Authority, Bhilai be dissolved with effect from 9-6-1998 and all assets and liabilities of the dissolved Special Area Development Authority shall stand vested in Nagar Palik, Bhilai, constituted under section 7 of the M.P. Nagar Palik Nigam Adhiniyam, 1956, Nagar Panchayat Kumhari constituted under the provisions of section 5 of the M. P. Nagar Palika Adhiniyam and a Nagar Palik Nigam Durg, constituted under the provisions of section 405(2) of Madhya Pradesh Nagar Palik Nigam Adhiniyam. The respondent/State, Municipal Corporation Bhilai or Nagar Panchayat Kumhari have not produced any other document on record to show that what particular employees were transferred to these authorities. After constitution of these three authorities, the State Government issued yet another notification on 4-9-1998 (Annexure R.2/2) transferring the particular assets. On 14-9-1998 under Annexure R.2/3, the Municipal Corporation, Bhilai directed posting of as many as 34 persons from the staff of Municipal Corporation, Bhilai with Nagar Panchayat at Kumhari. The petitioner was included in the said list. On 1-1-1999 (may be 2-1-1999), Commissioner, Municipal Corporation, Bhilai required the present petitioner to give his consent for his transfer and posting to Nagar Panchayat, Kumhari. On 4-1-1999 the petitioner vide Annexure P.3., reserved his consent and refused for his transfer. On 4-1-1999, Commissioner, Municipal Corporation, Bhilai issued as office order stating that in accordance with order of the Corporation, bearing No. 1281 dated 14-9-1998, persons who were transferred for posting at Nagar Panchayat Kumhari stand relieved. The petitioner thereafter joined at Kumhari, but Nagar Panchayat, Kumhari appreciating that they were not in need of 34 employees contacted and approached some minister and after obtaining his oral approval transferred 14 persons from Kumhari to Municipal Corporation, Bhilai. The order was issued on 27-2-1999 after approval of the administrator. The name of the petitioner was included in this list. After being relieved from Nagar Panchayat Kumhari, the petitioner approached the Commissioner, Municipal Corporation, Bhilai and gave his joining report. According to the petitioner he was not permitted to join as according to the Commissioner, the earlier transfer was absolute and the State Government did not direct for retransfer. The records show that on 17-3-1999, the State Government passed an order asking the Commissioner, Municipal Corporation, Bhilai that Kumhari Nagar Panchayat was in need of 26 persons only and proceedings for creation of 26 posts was under consideration, therefore, 8 persons be called back from Kumhari and only 26 persons/employees be posted at Kumhari Nagar Panchayat. The Order Annexure R.2/7 does not say anything that which employees were to be retained and which were to be transferred. It appears that everything was left to the discretion of Nagar Panchayat, Kumhari and/or Municipal Corporation Bhilai. Vide order Annexure R. 2/8 dated 9-4-1999. Municipal Corporation Bhilai proposed re-transfer in favour of 8 persons named in the said order.
2. The petitioner on one side was relieved by Nagar Panchayat Kumhari and on the other hand was not being permitted by the Commissioner, Municipal Corporation, Bhilai to join, approached this Court. This Court on 12-5-1999 passed an interim order directing that the petitioner may be allowed to rejoin-services at Municipal Corporation, Bhilai and salary be paid to him by Municipal Corporation, Bhilai subject to further directions by this Court regarding its reimbursement.
3. Respondent/Municipal Corporation has submitted that after re-organisation of Sada, Bhilai they were asked by the State Government to transfer their employees theref
