Vishal Singh vs The State Of Madhya Pradesh
2022 Latest Caselaw 2896 MP

                                                1




    IN THE HIGH COURT OF MADHYA PRADESH AT
                JABALPUR BEFORE
                       WRIT PETITION No. 2848 of 2022


           Between:-

   1.    VISHAL SINGH, S/O SHRI UTTAM SINGH,
         AGED    ABOUT     35   YEARS,   DY.
         COMMISSIONER,             MUNICIPAL
         CORPORATION     BHOPAL,    DISTRICT
         BHOPAL (M.P)




                                                                            .....PETITIONER

         (BY SHRI K.C.GHILDIYAL, ADVOCATE)

                                                     AND

   1.    STATE OF MADHYA PRADESH, THROUGH
         THE PRINCIPAL SECRETARY, URBAN
         DEVELOPMENT      AND      HOUSING
         DEPARTMENT VALLABH BHAWAN, BHOPAL
         (M.P.)

   2.    THE      COMMISSIONER,       URBAN
         ADMINISTRATION   &   DEVELOPMENT,
         MADHYA PRADESH, BHOPAL (M.P)

                                                                         .....RESPONDENTS

          (BY PIYUSH BHATNAGAR, PANEL LAWYER)
.......................................................................................................
                                                  ....

         This petition coming on for admission this day, Hon'ble Shri

Justice Atul Sreedharan passed the following:


                                          ORDER

(02/03/2022)

The Petitioner is aggrieved by the impugned order

dated 19.01.2022 passed by the Respondent No.2,

transferring the Petitioner from the post of Deputy

Commissioner, Municipal Corporation, Bhopal, to Nagar

Palika Parishad, Chitrakoot, Distt. Satna. Challenge to

the said order is on the grounds that it is illegal,

arbitrary and malafide, contrary to the provisions of

Service Rules. It is averred by the Petitioner that he

holds the substantive post of Chief Municipal Officer

(Class 'B') [hereinafter referred to as "CMO"], which is

graded as a Class II post and that he has been

transferred to Nagar Parishad Chitrakoot, District Satna

as the CMO. Nagar Parishad Chitrakoot, according to the

Ld. Counsel for the Petitioner, is a Class 'C' Municipality

and is not commensurate with his status which

according to the Petitioner, is a post which is lower than

his status. Besides, for the Petitioner to be considered

for promotion to the post of CMO (Class A), he has to

complete five years as CMO (Class B) and , if he is

transferred to a class C Municipality, he would not be a

CMO (Class B) and that would delay his consideration

for promotion to the post of CMO (Class A).

2. Annexure P/1 to the petition is an order dated

25.10.2016 by which the Petitioner was appointed

substantively on the post of Chief Municipal Officer

(Class 'B' ) on the pay-scale of Rs.15,600 -39,100/-+5400

as grade pay, after passing an examination conducted

by the Madhya Pradesh Public Service Commission. In

the select list, the Petitioner was placed at S.No.13. He

was posted to the office of Assistant Commissioner,

Nagar Palika Nigam, Morena. Vide order dated

24.08.2019 (Annex.P/2), the Petitioner was transferred

from Nagar Palika Nigam, Morena , to Nagar Palika

Nigam, Satna, as Deputy Commissioner. By a common

order dated 29/31.08.2020 (Annexure P/3), the

Petitioner was transferred from the post of Deputy

Commissioner, Nagar Palika Nigam, Satna to the post of

Deputy Commissioner, Nagar Palika Nigam, Bhopal.

Thereafter, the impugned order dated 19.1.2022

(Annex.P/4) has been passed by which the Petitioner has

been transferred from Nagar Palika Nigam, Bhopal to

Nagar Parishad, Chitrakoot, Distt. Satna on ad -hoc

basis, on the ground of administrative exigency , with

immediate effe ct.

3. The main ground of challenge to the said order is that

the status of the Petitioner is being downgraded , as he

was initially appointed in the year 2016 on the post of

Chief Municipal Officer (Class 'B'), which is a Class II

post and thereafter, all the posts that he has held before

the impugned order, were all in Municipalities which

were Class 'B'. He furt her says that the impugned order

now transfers him to Nagar Parishad, which falls under

Class 'C' category and therefore, he would be

downgraded from the post of CMO (Class 'B') to CMO

(Class 'C'), which would result in the loss of his status.

This, the Ld. Counsel for the Petitioner says is relevant

for the purpose of promotion from the post of CMO (Class

'B') to that of CMO (Class 'A') , for which the Petitioner

would have to serve for five years on the post of CMO

(Class 'B') to come into the zone of con sideration . It is

further averred on the part of the Petitioner that the

posting to a Nagar Parishad, which is Class 'C' , the

tenure served would not be added to his service record

as time served as CMO (Class B) , as the Nagar Parishad ,

Chitrakoot is Class 'C'. Therefore, it would take him

more years to serve in a Municipality or Municipal

Corporation, which is Class 'B' so that he becomes

eligible to be considered for promotion to C.M.O. (Class

'A').

4. In order to buttress his argument, Ld. Counsel for the Petitioner

has drawn the attention of this court to the second schedule of

the State Municipal Service (Executive) Rules, 1973. The post of

Chief Municipal Officer (Class B) is at serial number 4. The said

post is a Class II post. He now contends that by being transferred

to the Nagar Parishad, Chitrakoot, he would be downgraded to

the post of Chief Municipal Officer, Class C, which is a Class III

post, as the Nagar Parishad, Chitrakoot, itself falls under Class

C.

5. Section 86 of the Madhya Pradesh Municipalities Act, 1961 (for

short, "the Act") provides for the State Municipal Service for

providing officers to the Council under section 87 or 88 of the Act.

It established the five following services. (a) State Urban

Administrative Service, (b) State Urban Sanitation Service, (c)

State Urban Engineering Service, (d) State Urban Finance Service

and (e) State Urban Revenue Service. S. 86(4) enables the State

Government to transfer any member of the Municipal Services of

the State from one Municipality to another Municipality.

6. The Chief Municipal Officer is appointed under section 87 of the

Act, and It reads as follows:

87. Chief Municipal Officer.- (1) There shall be a Chief

Municipal Officer to every Council who shall be the Principal

Executive Officer of the Council and all other officers and

servants of the Council shall be subordinate to him. (2) The

Chief Municipal Officer of a Council shall be a member of a

State Urban Administrative Service and shall be appointed

by the State Government.

7. A conjoint reading of S. 86 and 87 of the Act reveals that (1)

there are five Municipal Services constituted u/s. 86 of the Act

and the State Urban Administrative Service is one of them. (2)

The CMO shall be a member of the State Urban Administrative

Service to be appointed by the State Government u/s. 87(2) of

the Act and (3) that the CMO, being a member of the one of

the five Municipal Services constituted u/s. 86(1) of the Act, is

amenable to be transferred from one Municipality to another

u/s. 86(4) of the Act. Here, it is relevant to mention that s.

86(4) of the Act does not specify or restrict the scope of transfer

between Municipalities. The Act does not lay down that a CMO

(Class B) cannot be transferred to a Municipality in Class C

and neither does it provide that a CMO (Class B) shall only be

posted to a Municipality in Class B. In fact, the Act does not

make any co-relation between the Class of service and the

class of Municipality.

8. Coming back to the second schedule under the State

Municipal Service (Executive) Rules, there are five posts

provided in the second schedule. The apex of the pyramid is

the Additional Director, Urban Administration, and there is

only one post. Below that, at serial number two is the post of

the Joint Director, Urban Administration Department, and

there are 14 such posts and the post is classified as Senior

Class I. The third post is that of the Chief Municipal Officer,

Class A. There are 84 posts, and it is classified as Class I. The

mode of recruitment of the Chief Municipal Officer (Class A) is

100% by promotion (CMO Class B is the feeder cadre). Below

Chief Municipal Officer (Class A) is the Chief Municipal Officer

(Class B) of which there are 107 posts, and its Grade is Class

II. Appointment to the post of Chief Municipal Officer (Class B)

is 50% by promotion from the feeder cadre of Chief Municipal

Officer (Class C) and 50% by direct recruitment. Here, it would

be pertinent to mention that the Petitioner entered into service

on the post of Chief Municipal Officer (Class B) after passing

the examination conducted by the Madhya Pradesh Public

Service Commission and is a direct recruit as shown in

Annexure P/1. Below this, is the Chief Municipal Officer

Class-C of which there are 267 post, and its grade is

Class-III. Recruitment to the said post is 50% by

promotion (from the officer of the Revenue) and 50% by

direct recruitment. In this case, it is undisputed that the

Petitioner entered into service in the post of CMO (Class-

B), which is at serial no.4 of second schedule, through

direct recruitment.

9. In order to understand the controversy, it would be

essential to reproduce herein the pay scale of CMO Class -

A, Class-B and Class-C. The scale of pay of the CMO

Class-A is Rs.15,600-39,100/-with a grade pay of

Rs.6600/-. The scale of pay of CMO Class-B is the same

as CMO Class-A, the only difference being in the grade

pay, which is lower by Rs.1200/- from that of CMO Class-

A and is fixed at Rs.5400/-. The scale of pay of CMO

Class-C is Rs.9300-34800/- with a grade pay of

Rs.3600/-. Thus it is seen that there is no variation in

the basic pay scale of the CMO Class-A and Class-B,

though the variation is only of grade pay. As rega rds the

post of CMO Class-C, the basic pay and the grade pay

are both lower than the CMO Class-B.

10. The contention of the Ld. Counsel for the Petitioner that

the transfer is against the rules and procedure

prescribed, as his transfer to Nagar Parishad at

Chitrakoot, which is a Class-C Municipality, would lower

him to CMO Class-C, which is Class-III is absolutely

untenable for the following reasons.

11. The Petitioner having directly been recruited and

appointed as CMO Class-B, irrespective of whichever

Municipality he goes to his substantive post will always

remain that of CMO Class-B till such time he is promoted

to CMO Class A. Merely because the Municipality to

which he is transferred is a class C Municipality, will not

result in the reduction of his substantive post from CMO

Class-B to CMO Class-C. Under the circumstances,

though the Petitioner has been transferred from Nagar

Palika Nigam Bhopal where he was serving as Deputy

Commissioner, to CMO, Nagar Parishad Chitrakoot, the

Petitioner continues to remain a CMO Class-B Officer.

The time served by him at Nagar Parishad Chitrakoot

shall be added to his account as CMO Class-B and not

Class-C as the substantive post cannot be downgraded

to Class-C, which is an impossibility.

12. Therefore, the contention put forth by the Ld. Counsel

for the Petitioner that by sending him to a Nagar

Parishad under a Class-C Municipality would

automatically reduce his post to CMO Class-C is

unfounded and not supported by reference to any rule or

the Act. Therefore, the period that the Petitioner serves

as CMO in the Nagar Parishad would be service rendered

as CMO Class-B which would still bring him under the

zone of consideration for promotion to CMO Class-A upon

completion of five years. However, that is no longer an

issue as the Petitioner, who was appointed on the post of

CMO Class B on 25/10/2016 and has thus, already

completed five years on the post of CMO Class B and has

entered the zone of consideration for being promoted to

CMO Class A.

13. No judgment has been placed before this Court by the

Petitioner which would go to show that merely posting an

officer to a category C Nagar Parishad, would down grade

his substantive post to CMO Class-C. It is also relevant

to mention here that the Ld. Counsel for the Petitioner

has not drawn the attention of this Court to any rule

which would reveal that a person substantively

appointed on the post of CMO Class-B cannot be posted

to a Municipality which falls in Class-C or, a provision

which shows that a person who is substantively

appointed on the post of CMO Class-B can only be

appointed to such municipalities which fall in Class -B.

14. It is also relevant to mention here that at the time the

impugned order was passed, the Petitioner was serving

on the post of Deputy Commissioner with the Nagar

Palika Nigam, Bhopal which is a Class-A Municipal

Corporation. If one goes by the logic put forth by the Ld.

Counsel for the Petitioner, it will mean that though the

Petitioner was appointed substantively as CMO Class-B,

on occupying the post of Deputy Commissioner of the

Municipal Corporation, Bhopal which is a class A

municipality, put him in the category of CMO Class-A,

even though he has not been promoted to the said post.

Thus, the converse applies equally where the Petitioner

is posted to a Nagar Parishad that may fall in Class-C,

there can be no presumption that his substantive post

has been downgraded from CMO Class-B to Class-C.

15. As regards the reference of the Ld. Counsel for the

Petitioner to the judgment passed by the learned co-

ordinate Bench in W.P.No.12302/2019 (Smt. Tanuja

Malviya Vs. State of M.P.) dated 05.07.2019. It appears

that this issue that has not been examined by the Ld. Co-

ordinate bench as it was never argued before the co-

ordinate Bench and so it was never considered.

16. The issue before the Division Bench in the judgment

passed in W.A.No.382/2021 (Radheshyam Mandloi Vs.

State of M.P.,) by which the Ld. Division Bench of this

Court set aside the impugned order passed by the

learned single judge, was completely different from the

issue before this Court. In that case, the Ld. Division

Bench was considering whether a person holding the

substantive post of CMO, can be substituted by a

Revenue Officer from a Class C Municipality? It went on

to hold in paragraph-9 that the appellant in that case,

was entitled to occupy the post of CMO Class-A

Municipality, whereas the Respondent no.2 was a

Revenue Officer in a Class-C Municipality and by no

stretch of imagination can be said to be holding the

feeder post for the promotional post of CMO Class -A as,

he had to climb various steps of the ladder to reach the

category of CMO Class-B and then reach to Class-A. As

the Respondent no.2 in that case was not in the feeder

cadre for the post of CMO Class-A, the transfer of

appellant, who was otherwise eligible to be on the post of

CMO Class A, and his replacement in an officiating

capacity by the Respondent no.2 who was incompetent to

occupy the post of the CMO Class-A, was held to be bad

in law by the Ld. Division Bench.

17. However, in this case, as already discussed hereinabove,

the issue is with relation to the down gradation of the

class into which the Petitioner was substantively

appointed only on account of his transfer to Municipality

which falls in Class-C, which has already been answered

by this Court hereinabove.

18. Transfer being an incident of service, the Petitioner has

been unable to demonstrate any of those limited

circumstances under which this Court could interfere in

the exercise of its plenary powers under article 226. It is

for the State to consider and utilise the expertise of the

Petitioner at such Municipality/Nagar Parishad that the

State feels that his talent and capabilities are required.

19. Under the circumstances, the judgments referred to by

the Ld. Counsel for the Petitioner are clearly

distinguishable and, therefore, do not apply in the facts

circumstances of this case. Therefore, in view of what has

been argued, discussed and held by this Court herein -

above, the petition sans merit and is dismissed.

(ATUL SREEDHARAN) JUDGE

Digitally signed by SHYAMLEE SINGH SOLANKI Date: 2022.03.02 16:13:42 +05'30' Adobe Reader version: 11.0.8