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2001 DIGILAW 355 (JHR)

Raghubansh Singh v. State Of Bihar

2001-06-04

SUDHANSU JYOTI MUKHOPADHAYA

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ORDER S.J. Mukhopadhaya, J. 1. The petitioner, a Junior Engineer of Public Health Engineering Department, has challenged the notification No. 367 issued vide Memo No. 368 dated 1.11.2000 whereby and whereunder the earlier orders issued in his favour vide Annexures 5 & 6 have been cancelled. 2. It appears that the petitioner and the 5th respondent, Bijendra Prasad Singh were transferred from one place to other which was subsequently stayed/cancelled and such orders were cancelled vide impugned notification dated 1.11.2000. 3. To appreciate the case, it is relevant to take into consideration the relevant dates relating to transfer/posting of 6th respondent as detailed hereunder. 4. The petitioner, Raghubansh Singh was functioning as junior engineer. P.H.D., Daltanganj Section. The 6th respondent, Bijendra Prasad Singh was earlier posted at Daltanganj in 1994 and was later posted at Patna and worked there for about five years. Th Regional Chief Engineer. P.H.E.D., Daltanganj issued one notification No. 728 dated 28.6.2000 whereby the services of the petitioner on the recommendation of the Establishment Committee was placed in P.H. Section, Daltanganj at Bishrampur. Another notification was issued on 31.7.2000 whereby and whereunder the 6th respondent was posted by Regional Chief Engineer, Ranchi in place of petitioner at Daltanganj. 5. The 6th respondent in pursuance of notification dated 31.7.2000 gave joining at Daltanganj on 4.8.2000 (vide Annexure-1R/D), which was forwarded by the Asstt. Engineer but seems to have not been accepted, he having not relieved from the earlier post. Subsequently, the 6th respondent having relieved from the earlier post vide Memo No. 2959 dated 25.9.2000, he again gave joining on 27.9.2000 (Vide Annexure-IR/E), which was accepted by the Executive Engineer on the same date. In the meantime, taking into consideration the forthcoming reorganisation of the State, the guideline was issued from Home (Special) Department, Government of Bihar vide letter dated 24.9.2000. Giving reference of the re-organisation Act. 2000 which was to be given effect in future, a request was made not to issue further order of transfer/posting of any employee at any place within the State of Bihar. 6. According to petitioner, the notification dated 28.6.2000 by which he was asked to report at Bishrampur section was against a non-est post as no post of junior engineer was created at Bishrampur even the so-called Bishrampur section was never sanctioned by the State. 6. According to petitioner, the notification dated 28.6.2000 by which he was asked to report at Bishrampur section was against a non-est post as no post of junior engineer was created at Bishrampur even the so-called Bishrampur section was never sanctioned by the State. In the aforesaid background, the Chief Engineer (Rural), P.H.E.D., Patna taking into consideration the guideline issued vide letter dated 24.9.2000 rejected the joining of 6th respondent, Bijendra Prasad Singh at Daltanganj and also cancelled the relieving order as was issued on 25.9.2000. The order of rejection or Joining and cancellation of relieving order was Issued vide Memo No. 338 dated 12.10.2000 (Annexure-5) followed by notification dated 24.10.2000 (Annexure-6) whereby and whereunder the notification of transfer of petitioner made on 26.6.2000 was cancelled. 7. The grievance of the petitioner is that the Engineer-in- Chief-cum-Special Secretary within a week issued impugned Memo No. 368 dated 1.11.2000 annuling the earlier order dated 12.10.2000 (Annexure-5) and the notification dated 24.10.2000 (Annexure-6) without any rhyme or reason and no such ground has been shown in the counter-affidavit filed on behalf of the respondent-State authorities. 8. While the petitioner claims to be performing duty of the post of Junior Engineer at Daltanganj in the light of the interim, order passed by this Court on 13.11.2000, according to 6th respondent, he having joined the post in August, 2000, is still working against the said post. 9. It is settled law that the effect of an order of transfer ceases the moment a person acts on the same, nothing substantive remains to annual or cancel the same. Though the authorities are empowered to issue one or other order transferring an employee from one place to another, the order of transfer once acted upon and implemented cannot be stayed or cancelled as nothing substantive remains to stay or cancel. 10. Admittedly, the 6th respondent joined the post at Daltanganj on 27.9.2000, which was accepted. The petitioner was also relieved earlier in pursuance of order dated 28.6.2000. The notification of transfer dated 31.7.2000 thereby having acted upon by the 6th respondent, there was no occasion for the Chief Engineer (Rural) to stay or cancel the same and/or to cancel the joining already given as was made vide Memo No. 338 dated 12.10.2000. The petitioner was also relieved earlier in pursuance of order dated 28.6.2000. The notification of transfer dated 31.7.2000 thereby having acted upon by the 6th respondent, there was no occasion for the Chief Engineer (Rural) to stay or cancel the same and/or to cancel the joining already given as was made vide Memo No. 338 dated 12.10.2000. Similarly, after issuance of notification dated 28.6.2000, the petitioner having relieved from the post at Daltanganj and the 6th respondent having joined the said post, the Engineer-in-Chief-cum-Special Secretary had no jurisdiction to cancel the earlier notification of transfer as was made vide notification dated 24.10.2000. Both the aforesaid orders dated 12.10.2000 and 24.10.2000 being Illegal, if the same has been cancelled by the Engineer-in-Chief-cum-Special Secretary vide Memo dated 1.11.2000, this Court finds no illegality in the same. 11. This apart, it will be evident that vide notification dated 24.10.2000, the petitioner was allowed to continue against the post at Daltanganj till 31st December, 2000, the effect of the order having come to end, the petitioner has no right even to continue against the post at Daltanganj in pursuance of notification dated 24.10.2000, since 1st January, 2001. In the aforesaid background, if this Court issued an interim order of stay on 13.11.2000, the petitioner cannot derive any advantage of such stay from 1.1.2001 and onwards. If the petitioner has not been posted against a sanctioned post and/or in a sanctioned section, may bring the same to the notice of the competent authority for his posting, against a clear vacant post in a sanctioned section but cannot be allowed to continue in the earlier post at Daltanganj. 12. The writ petition is dismissed. 13. The interim order of stay passed on 13.11.2000 stands vacated. 14. Petition dismissed.