- (1.)BY this petition under Article 226 of the Constitution, the petitioner is challenging his transfer order dated 31-7-1989 (Annexure A-1) from Gotegaon Municipality to Kaymore Municipality as a Lower Division Clerk, (in short, the "l. D. C"), and makes a prayer for allowing him to work as L. D. C. in Gotegaon Municipality.
(2.)THE petitioner was appointed as an L. D. C. in Municipal Council, Gotegoan by order dated 19-8-1968 (Annexure A-2) in the time scale of Rs. 80-160 plus Rs. 35/- as dearness allowance and ever since the date of his appointment, he has been working there as an L. D. C. By the impugned order he was transferred to Municipal Council, Kaymore in the same capacity. The petitioner contends that the post of L. D. C. is not transferable and, therefore, the impugned order is bad. The respondent No. 2 has filed his return and has tried to justify the order of transfer by referring to Section 94 (7) of the M. P. Municipalities Act, 1961, (in short, the "act" ).
(3.)HAVING heard the learned counsel for the parties, we are of the view that looking to the post held by the petitioner, the transfer order cannot be justified Under Section 94 (7) of the Act, which reads as follows :
"94 (7 ). The State Government may transfer any officer or servant of a Council mentioned in sub-sections (1) and (2) and in receipt of total emoluments exceeding one hundred rupees to any other Council. " These provisions were substituted in place of old provisions by Section 5 of M. P. Act No. 32 of 1967, published in M. P. Rajpatra (Asadharan) dated 23-12-1967. Sub-sections (1) and (2) of Section 94 read as follows : "94 (1) Every Council having an annual income of five lakhs of rupees or more shall, subject to rules framed Under Section 95, appoint a Revenue Officer and an Accounts Officer and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties. " (2) Every Council not falling under Sub-section (1) shall, subject to rules framed Under Section 95, appoint a Sanitary Inspector, a Sub-Engineer, a Revenue Inspector and an Accountant and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties : "provided that such Council may appoint a part-time Health Officer or an Engineer on such terms and conditions as the State Government may approve in this behalf. "
Before transfer of any officer or servant of a Council Under Section 94 (7), it is necessary to be seen that:
(i) such officer or servant is mentioned in Sub-section (1) and Sub-section (2) of Section 94; and (ii) such officer or servant is in receipt of total emoluments exceeding one hundred rupees.
It is not in dispute that the post of a L. D. C. is covered both under Sub-section (1) and Sub-section (2) of Section 94 of the Act. The first condition is, therefore, satisfied. So far as the second condition is concerned, the learned counsel for the petitioner contended that the petitioner was not getting the dearness allowance of Rs. 35/- per month. According to him, as per the appointment letter, the dearness allowence of Rs. 35/- was to be received by the petitioner only after reaching the last stage of his pay scale. As against this, the learned counsel for the respondent No. 2 submitted that the "total emoluments" mentioned in Section 94 (7) included pay and dearness allowance and as the petitioner was getting a sum of Rs. 115/- by way of pay and clearness allowance as per his appointment letter, the-second condition laid down in Section 94 (7) was also fulfilled and, therefore, the transfer order was quite legal. Reliance was placed in State of M. P. v. Shankar Lal, AIR 1980 SC 643 and Vasant v. State of M. P. , 1986 MPLJ 295.