Judgment S.B.Sinha, J. 1. Both these writ applications involving common questions of law and fact were heard together and are being disposed of by this common judgment. 2. C.W.J.C. No. 1576/90(R) has been filed by Dr. Smt. Kamini Barnwal (hereinafter referred to as Dr. Barnwal) questioning an order dated 1-8-1990 passed by the respondent No. 4 whereas she was directed to join the office of the said respondent as against a leave reserved post as contained in Annexure 8 to the writ application. C.W.J.C. No. 1460/91(R) has been filed by Dr. (Ers.) Nirmala Kumari (hereinafter referred to as Dr. Nirmala) questioning an order dated 18-7-1391 passed by the respondent No. 2 as contained in Annexure 3 to the writ application whereby he had been directed to give her joining report as against the leave reserved post. 3. The basic facts of the cases are admitted. 4. Dr. Barnwal was earlier posted on deputation in Ranchi Municipal Corporation and by reason of a notification dated 3-7-1990 (Annexure 1) she was transferred and posted as Medical Officer, P.P. Programme, Sadar Hospital. Dr. Nirmala was transferred from the said post and her services were placed at the hands of Urban Development Department, Bihar, Dr. Barnwal reported for duties in the office of the Civil Surgeon, Ranchi on 6-7-1990 and requested him to accept her joining report and pass necessary orders. 5. The Civii Surgeon, Ranchi in view of the aforementioned notification (Annexure 1) issued an order dated 10-7-1990 whereby Dr. Barnwal was directed to submit her joining report immediatedly and thereby Dr. Nirmala was also directed to submit her joining report in the Urban Development Department. Bihar and submits copies each of the charge report. The said office order is contained in Annexure 3 to the writ petition. 6. In terms of the aforementioned directions, Dr. Barnwal submitted her joining report on 10-7-1990 as against the post of Medical Officer, P.P. Programme vice Dr. Nirmala. 7. By reason of another office order dated 17-7-1990 issued by the Superintendent of Sadar Hospital, Ranchi, Dr. Barnwal was directed to submit her charge receiving report and Dr. Nirmala was directed to be relieved from her duties from the date of issuance of such order. The said office order is contained in Annexure 5 to the writ petition. 8. Dr. By reason of another office order dated 17-7-1990 issued by the Superintendent of Sadar Hospital, Ranchi, Dr. Barnwal was directed to submit her charge receiving report and Dr. Nirmala was directed to be relieved from her duties from the date of issuance of such order. The said office order is contained in Annexure 5 to the writ petition. 8. Dr. Barnwal by a letter dated 17-7-1990 stated that she had already joined on 10-7-1990 and also submitted 6 copies of the report showing taking over charge. 9. The State, however, by reason of a notification dated 18-7-1990 stayed the order of transfer of Dr. Nirmala; a copy whereof was forwarded to the Civil Surgeon, Ranchi whereby he was directed to accept her joining report or against the leave reserved post if no regular vacant post was existing there. However, by reason of an office order dated 1-8-1990 (Annexure 8), the respondent No. 4 directed Dr. Barnwal to submit her joining report as against the leave reserved post. Dr. Barnwal in her writ application contends that as she had already taken over charge, the impugnsd order as contained in Annexure 8 to the writ application must be held to be illegal and without jurisdiction in view of the order of the State Government as contained in Annexure 7 to the writ application. 10. A connter-affidavit has been filed on behalf of the respondent No. 4 sworn by one Dr. Ratnesh Kumar said to be the Medical Officer-in-charge of District Immunisation. According to the deponent of the said counter-affidavit, Dr. Barnwal never assumed charge and thus as on 18-7-1990 the post of Medical Officer, P.P. Programme was lying vacant. In Paragraph 8 of the said counter-affidavit the deponent has denied that Dr. Barnwal joined the post of Medical Officer, P.P. Programme. The said Paragraph 8 has not been verified. In Paragraph 9 of the said counter-affidivit, it was alleged that the respondent No. 4 never passed any order allowing Dr. Barnwal to join and work in the post of Medical Officer, P.P. Programme, The statements made in the said Paragraph have also not been verified. 11. The said Paragraph 8 has not been verified. In Paragraph 9 of the said counter-affidivit, it was alleged that the respondent No. 4 never passed any order allowing Dr. Barnwal to join and work in the post of Medical Officer, P.P. Programme, The statements made in the said Paragraph have also not been verified. 11. From a perusal of the verification portion of the said counter-affidavit, it appears that Paragraphs 1, 2 and 3 thereof have been verified as true to the deponents knowledge and the statements contained in Paragraphs 4, 5, 6 and 7 have been verified as true to the deponents information derived from the relevant records. The statements made in Paragraphs 1 to 7 of the writ application are formal in nature and are wholly inconsequential. It is regrettable that in such a contencious matter the respondent No. 4 has not himself come to swear an affidavit and further the deponent of the counter-affidavit has sworn the same in such a manner which cannot be acted upon. 12. The respondent No. 5 has also filed a counter-affidavit wherein it was alleged:- - That neither this answering respondent No. 5 had handed over charge of the post of Medical Officer, P.P. Programme as the writ petitioner was not released from the post of M.O. Nagar Nigam, Ranchi nor the joining of the writ petitioner was ever accepted by the Civil Surgeon on the post of Medical Officer, P.P. Programme, as such in the light of the order of stay vide Annnexure 8 the Civil Surgeon had rightly directed the writ petitioner to join on Leave Reserved Post in the Civil Surgeon Office. 13. When Dr. Barnwal filed the aforementioned C.W.J.C. No. 1576/(R), a Division Bench of this court by an order dated 9-8-1990 stayed that part of the order as contained in Annexure 8 to the writ application relating to the posting of the petitioner in the leaver reserve post. 14. It appears that Dr. Barnwal was not even paid her salary and by an order dated 9-7-1991 a Division Bench of this Court directed the respondent No. 3 (joint Secretary, Government of Bihar, Department of Health and Family Welfare) to make arrangement for payment of salary of the petitioner within six weeks from the date of receipt of a copy of the said order. Barnwal was not even paid her salary and by an order dated 9-7-1991 a Division Bench of this Court directed the respondent No. 3 (joint Secretary, Government of Bihar, Department of Health and Family Welfare) to make arrangement for payment of salary of the petitioner within six weeks from the date of receipt of a copy of the said order. It was further observed that if the order was not complied with or no application for modification thereof was filed; an appropriate action shall be taken against the respondent No. 3. 15. It appears that only thereafter by reason of an order dated 18-7-1991, which is contained in Annexure 3 in C.W.J.C. No. 1460/91, the Civil Surgeon directed Dr. Nirmala to give her joining report as against the leave reserve post. 16. Mr. P.P.N. Roy, the learned Counsel appearing on behalf of Dr. Nirmala submitted that her husband is a patient of cancer and as such she had filed a representation before the State of Bihar praying for cancellation of the order of transfer passed as against her. The learned Counsel submitted that as the order of transfer as contained in Annexure 1 to the writ application, had already been stayed, the impunged order dated 18-7-1991 could not have been issued by the civil surgeon, Ranchi particularly in view of the fact that this Court in its order dated 9-8-1990 has merely stayed the operation of the order relating to the posting of Dr. Barnwal cannot against the leave reserved post. The learned Counsel submitted that in this view of the matters, this Court should not interfere with the order dated 1-8-1990 as contained in Annexure 8 passed in C.W.J.C. No. 1576 of in C.W.J.C. No. 1460 of 1991. 17. The learned Counsel in support of his contention relied upon a decision in Mrs. Shilpi Bose and Ors. V/s. The state of Bihar and Ors., 1991 1 PLJR 61 and in Radhika Mohan Saran V/s. State of Bihar and Ors., 1991 1 PLJR 500. 18. It is now well known that an order of transfer is an incidence of service. The learned Counsel in support of his contention relied upon a decision in Mrs. Shilpi Bose and Ors. V/s. The state of Bihar and Ors., 1991 1 PLJR 61 and in Radhika Mohan Saran V/s. State of Bihar and Ors., 1991 1 PLJR 500. 18. It is now well known that an order of transfer is an incidence of service. Such order of transfer, when passed bona fide and in the administrative exigencies, this Court excising its jurisdiction under Article 226 of the Constitution of India cannot interfere therewith irrespective of the fact that such order of transfer had been on the request of the employee himself; as has been held by the Supreme Court in Shilpi Boses case (supra). 19. However, in this case the facts are absolutely different. 20. Dr. Barnwal submitted her joining report on 6-7-1990 in the office of the Civil Surgeon-cum-Chief Medical Officer, Ranchi and possibly her joining report was not accepted on that occasion as no office order in terms of the notification dated 3-7-1990 (Annexure-1) was issued by the said authority. Such an order was issued by the respondent No. 4 on 1-7-1990 (Annexure-3). Dr. Barnwal, therefore, appears to have submitted her joining report again on 10-7-1990. 21. It is clear from the facts of this case that Dr. Nirmala had been avoiding to hand over charge to Dr. Barnwal. She has categorically stated in her counter-affidavit that Annexure 5 was not served upon her as she was busy in looking after her husband and had already filed a representation. In her counter-affidavit, she states that 12-7-1990 she was on leave and she was ill. 22. The language used in Annexure-5, however, is absolutely clear in so far as it was stated therein that Dr. Nirmala was being relieved from the date of issuance of the said order. It is not in dispute that Annexure-5 has been given effect to. If this be so, on 18-7-1990 when Annexure-7 was issued the post of Medical Officer, P.P. Programme was not vacant having been occupied by Dr. Barnwal. 23. Dr. Barnwal submitted her charge report on 17-7-1990 and categorically stated that she had already given her joining report on 10-7-1990 as would be evident from Annexure-6 to the writ application. In this situation Dr. Nirmala, could have been adjusted by the Civil Surgeon, Ranchi only as against the leave reserve post. 24. Barnwal. 23. Dr. Barnwal submitted her charge report on 17-7-1990 and categorically stated that she had already given her joining report on 10-7-1990 as would be evident from Annexure-6 to the writ application. In this situation Dr. Nirmala, could have been adjusted by the Civil Surgeon, Ranchi only as against the leave reserve post. 24. In view of the notification of the State of Bihar as contained in Annexure-1 to the writ application as also in view of the orders issued from office of the Civil Surgeon. Ranchi and the Superintendent of Hospital, Ranchi as contained in Annexures-3 and 5 to the writ application, there cannot be any doubt that Dr. Barnwal had joined the post of Medical Officer, P.P. Programme in pursuance thereof. 25. In such a situation, the question of accepting the contention of Dr. Nirmala to the effect that the joining report of Dr. Barnwal was not accepted by the Civil Surgeon does not arise. The Civil Surgeon himself does not say that the joining report Dr. Barnwal was not accepted. 26. There cannot be any doubt that when an order of transfer is passed, the concerned employee may submit his/her representation before the State Government. The State Government can take an appropriate decision in relation thereto. 27. By reason of Annexure-7 to the writ application, the State Government appears to have intended to give some relief to Dr. Nirmala for the time being. In Annexure-7, it has been mentioned that Dr. Nirmala may be adjusted against a leave reserve post if there was no vacancy in regular post. 28. Mr. P.P.N. Roy, the learned Counsel appearing on behalf of the petitioner (Dr. Nirmala) however submitted that from a perusal of Rule 59 of the Bihar Service Code, it will appear that in terms thereof charge must be handed ever by the received officer and accepted by the relieving officer. The learned Counsel, in this connection, has relied upon a decision of this Court in K.C. Sinha V/s. State of Bihar through the Additional Secretary and Ors. reported in 1985 PLJR 868. The facts of that case were absolutely different from the present one. In that decision it could not be shown that the relieved officer was non-cooperative; nor could it be shown that he was given any written direction to hand over charge. In this case, Dr. Nirmala was directed to hand over charge on 10-7-1990. reported in 1985 PLJR 868. The facts of that case were absolutely different from the present one. In that decision it could not be shown that the relieved officer was non-cooperative; nor could it be shown that he was given any written direction to hand over charge. In this case, Dr. Nirmala was directed to hand over charge on 10-7-1990. Apparently she avoided to do so by giving a leave and therefore, the office order dated 17-7-1990 (Annexure 5) had to be issued. Further it is now well settled that a party cannot take advantage of his own wrong. 29 Rule 59 of the Bihar Service Code reads as follows: Unless, for special reasons of a public nature to be recorded in writing the State Government permits or requires it to be made in any particular case elsewhere, or otherwise the charge of an office must be made over at its headquarter; both the relieving and relieved Government servants being present; Provided that it shall not be necessary for both the relieving and relieved Government servants to be present in cases where the former is returning from leave to which holidays have been prefixed. 30. Form a perusal of the aforementioned Rule 59 itself, it would appear that the rigours of the presence of both the relieving officer as also relieved officer at the time of handing over and taking over charge is not necessary when the relieving officer is on leave. 31. In this case, it is admitted that Dr. Nirmala had been on leave. 32. Mr. Roy further conceded that regard being had to the post of Medical Officer, P.P. Programme, the handing over and taking over of charge was merely a formal matter. 33. In this case, as noticed hereinbefore, the State has in terms of Annexure-7, directed that Dr. Nirmala may be asked to take over charge as against the leave reserve post in the event the regular post is not vacant. 34. In this view of the matter, strict compliance of Rule 59 of the Bihar Service Code was not necessary. Further, evidently in view of Annexure-3 to C.W.J.C. No. 1460/91(R), Dr. Barnwal must be held to be occupying the post of Medical Officer P.P. Programme today as the operation of the order impugned in her writ application (Annexure-3) had not been stated by this Court. Further, evidently in view of Annexure-3 to C.W.J.C. No. 1460/91(R), Dr. Barnwal must be held to be occupying the post of Medical Officer P.P. Programme today as the operation of the order impugned in her writ application (Annexure-3) had not been stated by this Court. In the interest of justice, therefore, in my opinion, this Court should not interfere with the existing arrangements. 35. As noticed hereinbefore, it is evident that Dr. Barnwal took over charge of the Medical Officer, P.P. Programme on 10-7-1990 and Dr. Nirmala was relieved from the said post with effect from 17-7-1990. In this view of the matter, Nirmala could have joined only as against the leave reserve post. 36. For the reasons aforementioned, C.W.J.C. No. 1576 of 1990 (R) is allowed and the impuged order dated 1-8-1990 as contained in Annexure-8 thereto is quashed and C.W.J.C. No. 1460 of 1991(R) is dismissed. 37. Before parting with the case, however, it may be mentioned that as the order staying transfer of Dr. Nirmala is temporary in nature, the State has to pass a final order on the representation filed by her and in the peculiar: facts and circumstances of the case it is desirable that such a final order is passed as early as possible and preferably, with in a period of two months from the date of receipt of a copy of this judgment. However, in the facts and circumstances of the case the parties shall pay and bear their own costs.