http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: SHANKER LAL & ORS.

DATE OF JUDGMENT16/01/1980

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. REDDY, O. CHINNAPPA (J)

CITATION:  1980 AIR  643            1980 SCR  (2) 786  1980 SCC  (1) 702

ACT:      Madhya Pradesh Municipalities Act, 1961, Section 94(7)- Scope of-State  Government transferred  teachers employed by Municipal Councils-Competency of.

HEADNOTE:      The respondents were employed as lecturers and teachers in the  various Municipal  Higher Secondary  Schools run and managed by  a Municipal  Council in  the  State.  The  State Government  transferred   certain  lecturers   and  teachers serving under  a particular Municipal Council to the Schools run  and   managed  by   another  Municipal   Council.   The respondents writ  petition challenging  the order  of  their transfers was  allowed by  the High Court on the ground that no officer  other than  those mentioned  in s.  94(7) namely Revenue Officer, Accounts Officer etc. could be transferred.      In the  State’s appeal  the respondents  contended that they were  employees of schools run and managed by Municipal Councils but not of the Councils. ^      HELD: 1.  The High  Court was  not right  in putting  a restricted interpretation  on s. 94(7) of the Act. The other officers and  servants who can be appointed by the Municipal Councils under sub-section (1) or sub-section (2) of Section 97 are  also officers  and servants  mentioned in these sub- sections for the purposes of sub-section (7). Theoretically, therefore, the  power does  exist in the State Government to transfer them. [788 B-C]      2. The  argument that the respondents are the employees of schools run and managed by the Municipal Councils but not of the  councils  themselves  has  no  substance.  Education department is one of the departments of a Municipal Council. Section 124  envisages  the  establishment  and  running  of Higher Secondary Schools by Municipal Councils and therefore the lecturers  and teachers appointed in the various schools are officers and servants of the Municipal Councils. [788 G- H, 789 A]      3. In  case of  employees getting  small emoluments the power to  transfer should  be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. [788 C-D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 537-539 of 1970.      Appeals by  Special Leave  from the  Judgment and Order dated 20-8-1968  of the  Madhya Pradesh  High Court in Misc. Petition Nos. 282, 283 and 293 of 1968.      S. K. Gambhir for the Appellant.      S. S. Khanduja for the Respondents. 787      The Judgment of the Court was delivered by      UNTWALIA, J.-These  three appeals  by special leave are from the  common judgment  of the  Madhya Pradesh High Court allowing the Writ Petitions filed by the six respondents and quashing the  orders of  their transfer  made by  the  State Government in  exercise of their power under s. 94(7) of the Madhya Pradesh  Municipalities Act, 1961, hereinafter called the Act.  The respondents  were employees  of the  Municipal Council, Sagar. They were employed as lecturers and teachers in the  various Municipal  Higher Secondary  Schools run and managed by  the said  Municipal Council.  Three orders  were issued by  the State  Government on  various dates  in June, 1968 transferring  certain lecturers  and  teachers  serving under a  particular Municipal Council to the schools run and managed by  another Municipal  Council. The  six respondents were transferred  by the said orders to various places. They challenged the  order of  transfer in  the High Court on the ground that  the State  Government had  no power to transfer them under  s. 94(7) of the Act. The High Court has accepted their contention and hence these appeals.      We shall  quote the relevant provisions of s. 94 of the Act as  they stood at the relevant time from the judgment of the High  Court. There have been some amendments in the year 1973 with which we are not concerned. They read as follows:-      "94. Appointment of staff:-           (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, an                Overseer,  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:                ............................................           (7)  The State Government may transfer any officer                or servant  of a  council mentioned  in  sub-                sections (1)  & (2)  and in  receipt of total                emoluments exceeding  one hundred  rupees  to                any other Council." 788 The High  Court has  taken the  view  that  the  words  "any officer or  servant of  a Council  mentioned in sub-sections (1) and  (2)" occurring  in sub-s.  (7) mean "any officer or servant as  enumerated or  specified in sub-ss. (1) and (2): that is  to say,  the officers  who can be transferred under sub-s. (7)  are  only  Revenue  Officer,  Accounts  Officer, Sanitary Inspector  and an  Overseer, a Revenue Inspector or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

an  Accountant.   No  other   officer  or   servant  can  be transferred. We do not think that the High Court is right in putting this  restricted interpretation  to sub-s. (7) of s. 94. Other  officers and servants who can be appointed by the Municipal Councils  either under  sub-s. (1) or under sub-s. (2) are  also the  officers and  servants mentioned in these sub-sections for  the purposes of sub-s. (7). Theoretically, therefore, the  power does  exist in the State Government to transfer them.  We must, however, hasten to add that in case of employees  getting small emoluments the power seems to be meant  to  be  sparingly  exercised  under  some  compelling exigencies of  a particular situation and not as a matter of routine. If  it were  to be  liberally  exercised,  it  will create tremendous  problems and  difficulties in  the way of Municipal employees  getting small  salaries. There  may  be hardly an  employee serving  under any Municipal Council who cannot be theoretically and literally covered by sub-ss. (1) and (2)  and subjected  to the exercise of power of transfer under sub-s. (7).      The High  Court in  support of its view has referred to sub-s. (4)  of s. 94 wherein only the officers enumerated in sub-ss. (1)  and (2)  are specified. Obviously the said sub- section does  not cover  the cases  of  other  officers  and servants as  mentioned in  sub-ss. (1) and (2). The language of sub-sec.  (7) is  in contrast  to that of sub-s. (4) and, instead of  lending support  to the  view of the High Court, goes against it.      It  was  argued  for  the  respondents  that  they  are employees of  the Schools  run and  managed by the Municipal Councils but not of the Councils themselves. We do not think that  this   argument  has   got  any  substance.  Education department is one of the departments of a Municipal Council. Duties of  the Council  are enumerated  in sub-s.  (1) of s. 123,  clause   (v)  which  provides  for  "establishing  and maintaining primary  schools". Under  s. 124 "a Council may, at its  discretion, provide,  either wholly or partly out of the Municipal  property and  fund, for  all or  any  of  the following  matters,   namely  (c)   furthering   educational objects." Thus establishment and running of Higher Secondary Schools by  Municipal Councils  are envisaged  under the Act and the  lecturers and  teachers appointed  in  the  various schools 789 are undoubtedly  the officers  and servants of the Municipal Councils.      For the  reasons stated  above we  hold that  the State Government had the power to transfer the respondents. But it is not  clear why the power was exercised in the case of the respondents. In any event, learned counsel for the appellant assured us  that the  State is  more anxious for the correct interpretation of  the law engrafted in section 94(7) of the Act than  to enforce  the  order  of  transfer  against  the respondents. In  the result while clarifying the position of law, we dismiss the appeals but make no order as to costs. N.K.A.                                    Appeals dismissed. 790