. z'^l.^.^^-l";' ^5ilSi&l':'l':.:-; aws ^SXSI^--- cp,^_^ p.a.1 p?e^ ^s^^'" . . . .. , ..:......,.....•..•......;•.:./......:.•.•.,.....-../-...:-.-/^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.S No.........../..'. .^:... .../2010 PETITIONER: AjayPandey S/o Shri Ramkrishna Pandey, Aged about 53 Years, R/o 51- Geetanjali Phase-I, Bahtarai Road Bilaspur (C.G.) VERSUS RESPONDENTS: 1. State of Chhattisgarh Through the Additional Secretary Department of Urban Administration and Development D.K.S. Bhawan, Mantralaya Raipur(C.G.) : / 2. Bilaspur Municipal Corporation Through Conunissioner BUaspur (C.G.) 3. D.K.Verma Currently posted as Sanitary Inspector, Municipal" Corporation, Raipur (C.G.) PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRITS OF MANDAMUS AND CERTIORARI AND FOR OTHER SUITABLE WRITS AND DIRECTIONS:- \? N1— HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 716 of 2010 PETITIONER RESPQNDENTS VERSUS Ajay Pandey State of Chhattisgarh and others Shri Jitendra pali counsel forthe petitioner. Shri A.S. Kachhwaha counsel for respondents 1 and 2. Respondent No.3 is reported to have expired. WRIT PETITION UNDER ARTICLES 226 OF THE CONSTITUTION OF INDIA ORDER (12.11.2010) Challenge in this petition is to the order dated 23.1.2010 (Annexure P-1) passed by respondent No.1 transferring the petitioner on deputation to Municipal Corporation, Jagdalpur, from Municipal Corporation Bilaspur. 2. Facts of the case in brief are that originally the petitioner is an employee of Municipal Council, Dhamtari and was appointed as Lower Grade Clerk on 1.9.1975 vide Annexure P-2. After passing the departmental examination, he was promoted as Additional Sanitary Inspector on 18.6.1977 vide Annexure P-3. It is the case ofthe petitioner that thereafter he had served in various municipalities at Dhamtari, Kawardha and Rajnandgaon and in the year 1999 he was transferred to Municipal Council, Kirandul, South Bastar, Dantewada vide order dated 17.6.1999 (Annexure P-4). Further case of the petitioner is that on 18.7.2005, he made an application (Annexure P-5) to the State Government for transferring him to Municipal Corporation Raipur, Bilaspur or Durg and if not possible in these three municipal corporations then any of the municipalities of Bilaspur district. It appears that the application of the petitioner was considered by the Deputy Director, Urban Administration on 1 .6.2006 and the same was forwarded to the Directorate, Urban Administration and Development, Raipur and considering the sameon 12.6.2006 vide Annexure P-7 an order was passed by the State Government transferring the petitioner on deputation at Municipal Corporation, Bilaspur from Municipal Council Kirandul, as Sanitary Inspector. Further case of the petitioner is that on 7.6.2008 vide Annexure P-8, considering his seniority in the Municipalities; he was promoted to the post of Health Officer from that of Sanitary Inspector. However, the petitioner remained at Municipal Corporation Bilaspur. On 23.1.2010 an order has been passed transferring the petitioner on deputation from Municipal Corporation Bilaspur to Municipal Corporation Jagdalpur. 3. Counsel for the petitioner submits that the petitioner gave his consent for deputation only in respect of three municipal corporations i.e. Raipur, Bilaspur and Durg and therefore he cannot be transferred on deputation to any other municipal corporation without obtaining his consent. He submits that under the administrative control of the State Government though the petitioner can be repatriated, he cannot be posted at a different municipal corporation as in doing so his employer would change. It is argued that as lien of the petitioner is maintained between the municipal councils, unless he is absorbed in the municipal corporation, he cannot be transferred from one corporation to the other taking advantage of section 58 of the Municipal Corporation Act. Reliance is placed on the decisions of the Supreme Court in the matter of Umapati Choudhary v. State of Bihar and another reported in (1999) 4 SCC 659, in thematter of State of Punjab and others v. Inder Singh and others reported in (1997) 8 SCC 372 and in matter of Prasar Bharti and others v. Amarjeet Singh and others reported in (2007) 9 SCC 539. 4. Opposing the submissions of the counsel for the petitioner, it has been argued by the counsel for the respondents that after availing the benefit of promotion to the post of Health Officer, the petitioner becomes an employee of State cadre of Chhattisgarh and therefore his services are transferable to any of the municipal corporations. 5. Heard counsel for the parties and perused the documents on record. I 6. Admittedly, the petitioner is originally an employee of Municipal Council and it is not disputed that his lien is maintained in the Municipal council only. He came to Municipal Corporation, Bilaspur, on deputation when he gave his consent and till date no order has been passed in respect of absorption of his services with the municipal corporation Bilaspur or with any other Municipal Corporation. Once the petitioner is an employee of Municipal council and has not given consent for his transfer on deputation to Municipal Corporation, Jagdalpur, he cannot be transferred on deputation to the Municipal Corporation, Jagdalpur. Undisputedly, the petitioner has not been absorbed with any of the municipal corporations, and therefore, even after takingadvantage of Section 58 of the Municipal Corporation Act without obtaining his previous consent, the petitioner cannot be sent on deputation to Municipal Corporation Jagdalpur because in doing so the employer of the petitioner would change. 7. Thus in view of the above factual and legal position, the order impugned cannot be sustained and is liable to be set aside. Accordingly, the petition is allowed. Order impugned dated 23.1.2010 (Annexure P-1) -is hereby set aside. 8. Counsel for the petitioner submits that despite status quo order passed by this Court on 18.2.2010 in favour of the petitioner, he has not been permitted to perform his duties at Municipal Corporation Bilaspur and even his salary has not been paid and therefore a direction may be issued to the respondents to pay entire salary of the petitioner. Disputing this fact it has been argued by Shri Kachhwaha appearing for Municipal Corporation Bilaspur that oh 18.2.2010 this Court had passed the order granting status quo in favour of the petitioner as it obtained on that date whereas on the said date the petitioner was not performing his duties at Municipal Corporation, Bilaspur and was already relieved on 11.2.2010 and this fact has been suppressed by the petition in his writ petition. 9. Be that as it may, on the application made by the petitioner the respondents shall consider his case in respect of payment of salary for the disputed period. Respondents are at liberty to pass the order for repartition of the petitioner if so desire. - Sd/- 1 pritinker Diwaker Judge