Section 336(2) Municipalities Act | Transfer Order Does Not Require Officer's Consent, Different From Deputation: Rajasthan High Court

The Rajasthan High Court has observed that transfer order under Section 336(2) State Municipalities Act 2009, cannot be construed as a transfer by way of deputation since the provision does not provide for officer's consent which is essential for deputation.

The court said that once an order under Section 336(2) is issued, the officer/employee has no option but to join the duty at the transferred place. 

For context Section 336 pertains to Transfer of an officer or government servant from one Municipality to another.

Section 336(2) states that any officer or servant of the Municipality may be transferred by the State Government to the Jaipur Development Authority or Jodhpur Development Authority or Rajasthan Housing Board or any Urban Improvement Trust or any other local body on post carrying pay scale not lower than the pay scale of the officer or servant to be transferred.

The division bench of Justice Pushpendra Singh Bhati and Justice Sandeep Taneja was hearing a petition challenging the single judge's order which had upheld an order by Commissioner of Udaipur Development Authority (UDA) repatriating the appellant officer from UDA to his parent department. The appellant was originally  transferred from Municipal Council Makrana to UDA by the government's Local Self Department under Section 336 of the Act on 20.09.2023.

The Single Judge dismissed the writ petition holding that transfer of the appellant by order dated 20.09.2023 was a transfer on deputation and thus Commissioner UDA is empowered to repatriate him to his parent department. 

The bench however said:

“A close reading of Section 336(2) of the Act of 2009 reflects that it does not provide for consent of either of the parties i.e. lending employer, borrowing employer and the concerned employee. Once the State Government, in exercise of powers conferred in the aforesaid section, issues an order for transfer of an officer or servant of a Municipality to a Development Authority, the employee concerned has no option but to join the duty at the transferred place. The section does not contemplate seeking of consent of the employee before issuing his transfer order. In the absence of his consent, therefore, it cannot be said that the transfer as provided under Section 336(2) of the Act of 2009 shall be a transfer by way of deputation.”

In this background, the Court highlighted, in the present case, no consent was obtained from the appellant when he was originally transferred to UDA. Even his transfer order dated 20.09.2023 did not mention that it was on deputation, the bench added. 

The appellant was appointed as Junior Accountant in the Local Self Department, and was transferred from the Municipal Council to UDA under section 336. However, subsequently, he was relieved by UDA and repatriated to his parent department.

This order was challenged before the single judge which was dismissed with a holding that the transfer was on deputation and hence UDA was empowered to repatriate him. Hence, the appeal was filed before the Court.

It was argued by the appellant that Section 336 used the word “transfer” and not “deputation”, hence appellant's transfer could not be said to be on deputation. Further, it was submitted that deputation involved consent of employee which was missing in this case.

After hearing the contentions, the Court held that the law relating to meaning of “deputation” was well settled and required voluntary assignment of an employee from one organization to the other. It required a tripartite agreement between the lending employer, borrowing employer and the employee concerned. The Court stated,

Furthermore, the Court rejected the argument of the respondent that since Section 366 did not prohibit repatriation of an employee, it could not done. It was held that since the power to transfer an officer or service under Section 336 was conferred exclusively on the State, power to retransfer/recall/repatriate was also vested in the State Government.

Accordingly, order by the single judge as well as by the Commissioner, UDA was set aside, and the appeal was allowed.

Title: Ravindra Gurjar v State of Rajasthan & Anr.

Citation: 2025 LiveLaw (Raj) 335

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