C.S. Tiwana, J. - (1.) This Judgement will dispose of Civil writ Petition No. is 1170 of 1976 and 1084 of 1975 respectively filed by Joginder Singh and Surjan Dass, as they arise Out of the same order dated February, 1975 passed by the State Transport Commissioner, Punjab, respondent No. 1. Both the writ petitions are under Art. 226 of the Constitutional Thee facts 'of the case may be stated With the help of the writ petition hide by Joginder Singh who will hereinafter be referred CO as the petitioner.
(2.) By the impugned order, Annexure P. 4, respondent No. 1 reverted five clerks working under him to another Department under the control of the Director, State Transport, Punjab respondent No 2. Respondent 1 thereafter called upon respondent No. 2 to pass suitable orders of their postings. for petitioner and Surjan Dass were two such clerk who were so ordered to be reverted. the petitions mentioned that he was recruited as a clerk in June, 1966. in the office of the General Manager Punjab Roadways. Jalandhar. Thereafter on a selection made by the Departmental Selection Committee, a post of a clerk was offered to the petitioner by the Provincial Transport Controller. Punjab, under the General, Manager, Punjab Roadways, Jullundur This offer |was made on May 23, 1969. The petitioner was to remain on probation for two years. After he joined the service offered to him there was bifurcation of Department of the Provincial Transport Controller in the month of August, -1969 into two wings, namely, the commercial wing and the non- commercial wing. The office of respondent No. 2 fell under the commercial wing and the office of respondent No l under the non-commercial wing After the petitioner continued to hold a temporary appointment under respondent No. 1 he was regularised on September 27, 1974, alongwith Surjan Dass and here others. It was thereafter on February 6, 1975, that respondent No passed the impugned order sending him to the commercial wing under respondent No. 2 it is contended by the petitioner that the service commissions of the employees under respondent Nos. 1 and 2 were materially a different He made his particular allegation that his transfer had been made: from a pensionable post to a non pensionable one and thus the. transfer was hit by Article 311 of the Constitution. He has prayed for the issue of an appropriate writ of certiorari or mandamus for quashing order Annexure P 4 on the ground that the respondents did not hive any jurisdiction to agree to his transfer.
(3.) The main stand taken by the respondents is that the petitioner had originally been appointed in the Punjab Roadways, Jullundur, against a non-pensionable post and that he had a lien on a post under respondent No. 2 and thus he did not suffer any loss No clear aver meant was made on this point whether the post to which the petitioner stood reverted was a pensionable one. To this averment of the petitioner that he had been transferred to a non-pensionable post, the reply as contained in para 7 or the written statement of the respondents is that it was denied that there were no pensionable posts of clerks in the commercial wing. It only means that some of the posts were pensionable and some of them were not. There was no specific plea on this point that the post which the petitioner on his reversion is at present holding is pensionable. 4 The respondents can hardly defend their action on the ground that the petitioner had been seat to a post on which he had a lien. Rule 3 12 of the Punjab Civil Services, Vol 1, Part 1, save that unless in any case ft be otherwise provided in the rules a Government employee on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any urn previously acquired on any other post. When it was not being denied that the petitioner was a confirmed hand under respondent No. I it could not at all be correct that the petitioner had any lien on a temporary post under respondent No 2. The learned Assistant advocate-General appearing on behalf of the respondents laid stress on this point that the petitioner had been sent back to an equivalent post and, therefore, he did not suffer any loss in emoluments. Such loss can be said to be there because the present post of the petitioner is non pensionable. Further mere, the petitioner having been sent from one department to another his transfer cannot be said to be valid unless it had been effected with his consent. Reference was made to condition No. 6 mentioned in letter Annexure P 1 by which the post of a clerk was offered to the petitioner on May 23, 1969 It was mentioned therein that he could be transferred to any other office of the Punjab Transport Department, After the bifurcation of the original department of the Provincial Transport Controller two departments name into existence. Condition No. 6 of the letter of appointment can only mean that the petitioner can be transferred to any of the departments under the control of respondent No. 1, When respondent No 1 is the controlling authority for the petitioner this kind of order passed by him cannot be said to be a valid one when he called on another head of department to issue his posting orders. It would have been a different matter if the transfer had been ordered by a higher authority controlling the departments of both respondents Nos. 1 and 2. Respondent No. 1 could not refer the matter to the Secretary, Transport Department. because on a representation made by the petitioner he had come to this conclusion that the petitioner among others having been appointed on a regular basis had acquired a right against his post. This decision was convened by the Secretary to respondent No. 1 through a letter dated September 24, 1975, Annexure P 6. He had also mentioned there in that the petitioner and his companions did not have any liens of the posts in the Punjab Roadways depots and for that reason they could not be transferred there without their consent. If any reference had been made earlier to the Secretary, his reply would have been in similar terms. The petitioner in para 8 of the petition referred to another order passed by respondent No. 1 in the month of March, 1974 which was in similar terms as the order against the petitioner. It was avert red that the Government made this observation in that case that it is not proper to transfer employees appointee against pensionable posts in the Directorate to the Punjab Roadways de-posts which is a con-pensionable institution without obtaining the prior consent of the employee. Then reference was made to another identical order passed against another clerk of the Punjab Roadways, Jullundur. When he challenged the transfer order through Civil Writ Petition No. of 1974 the Mate Government disclosed that the representation made by the clerk had been accepted and that be would be transferred back; within one month. That writ petition was thereafter dismissed as being infructuous. In the face of these facts it is sot possible to sustain the order of transfer as against the petitioner.;