NARENDRA NATH TIWARI, J. - (1.) IN this application the petitioner has prayed for quashing the order as contained in Memo No. 1627 dated 27.10.2004 (Annexure 8) and also the office Order No. 132 dated 28.10.2004 (Annexure 10). The petitioner has also sought declaration that he is deemed to be posted as Work Sarkar at Drinking Water and Sanitation, Swarnarekha Distribution Division (Ranchi Section), Ratu Road, Ranchi and that he is entitled to get his salary from the post of Swarnarekha Distribution Division (Ranchi Section), Ratu Road, Ranchi. The petitioner has also prayed for a direction to the respondents to allow the petitioner to rejoin and perform his duty at Swarnarekha Distribution (Ranchi Section), Ratu Road, Ranchi.
(2.) THE petitioner 'scase is that at the relevant period he was posted as Work Sarkar at Drinking Water and Sanitation, Swarnarekha Distribution Division (Ranchi Section), Ratu Road, Ranchi. By office Order No. 58 dated 28.6.2003 several persons including the petitioner were transferred. The petitioner was transferred to Drinking Water and Sanitation, Swarnarekha Head Works Division, Ranchi from Drinking Water and Sanitation, Swarnarekha Distribution Division (Ranchi Section), Ratu Road, Ranchi (Annexure 2). Subsequently, by Annexure 3 dated 28.9.2003, the said transfer order was stayed and it was decided that all the matters shall be placed before the establishment committee. According to the petitioner, in spite of the order of stay, the Executive Engineer, Drinking Water and Sanitation, Swarnarekha Distribution Division, Ranchi Relieved the petitioner to join at Drinking Water and Sanitation, Swarnarekha Head Works Division Ranchi by an antedated order dated 15.9.2003. Except him, all the other persons were allowed to remain at the place of their previous posting after the said order dated 28.9.2003 (Annexure -3) was issued. The petitioner, in compliance of the relieving order, joined as Work Sarkar at Swarnarekha Head Works Division, Ranchi, but his last pay certificate was not issued and the petitioner was not paid his salary for the month of October 2003. The petitioner 'ssalary was paid from the month of November 2003 which was continued up to January 2004. By office Order No. 103 dated 26.6.2004, issued by the Superintending Engineer, Drinking. Water and Sanitation, Urban Circle, Ranchi, the petitioner was again posted at Swarnarekha Distribution Division (Ranchi Section), Ratu Road, Ranchi in permanent work charge establishment (Annexure -4). When the petitioner submitted his joining pursuant to the order of the Superintending Engineer dated 26.6.2004, the Executive Engineer did not allow the petitioner to join his duty on the ground that there was no vacant post of Work Sarkar at Swarnarekha Distribution Division (Ranchi Section), Ratu Road, Ranchi. The petitioner thereafter made a representation and the Superintending Engineer directed the Executive Engineer to allow the petitioner to assume charge in compliance of the order dated 26.6.2004. Then the petitioner was relieved from the Head Works Division, Ranchi by Memo No. 598 dated 7.10.2004 and on 8.10.2004 gave his joining at Distribution Division, Ranchi Section, Ratu Road. However, the Zonal Chief Engineer, Drinking Water and Sanitation Department, Ranchi by his letter No. 711 dated 22.7.2004 directed the Superintending Engineer to cancel all the orders of posting and get all the orders revised afresh by the establishment committee (Annexure -7). The petitioner 'sgrievance is that in spite of the same, the Superintending Engineer has not cancelled the order of transfer and posting nor the matter has been placed before the establishment committee for any decision but the Executive Engineer cancelled the posting of the petitioner at Distribution Division (Ratu Section), Ranchi returning the L.P.C. of the petitioner to the Head Works Division, Ranchi by order dated 27.10.2004. The Zonal Chief Engineer again directed the Superintending Engineer to take fresh decision for transfer and posting after obtaining the recommendation of the establishment committee (Annexure -9). But in stead thereof, the Superintending Engineer purportedly cancelled the order of petitioner 's posting dated 26.6.2004 (Annexure -4). However, he directed that the petitioner shall be working at Drinking Water and Sanitation, Swarnarekha Head Works Division, Ranchi and he will be paid salary etc. from that place. According to the petitioner, the respondents while passing the said order as contained in Annexure -10 has acted arbitrarily as he alone has been ordered to be relieved from Swarnarekha Distribution Division (Ranchi Section), Ratu Road, Ranchi to be posted to Swarnarekha Head Works Division, Ranchi. According to him, the said action of the respondents is discriminatory and arbitrary. A counter affidavit has been filed by the respondents disputing the said allegation of the petitioner and stating, inter alia, that there is no arbitrariness or illegality in issuing the impugned orders as contained in Annexures -8 and 10. It has been stated that the petitioner has been duly posted at Swarnarekha Head Works Division, Ranchi, in order to facilitate the payment of his salary etc. since the post of Work Sarkar at Swarnarekha Distribution Division (Ranchi Section), Ratu Road, Ranchi is not vacant. The said post was previously held by work charge staff who retired. As per the Government letter No. 227 dated 29.2.2002, the said post became automatically non - existent after the retirement of the said work charge staff. Hence there is no vacancy. It has been further stated that the petitioner was transferred along with others by office Order No. 58 date 28.6.2003. The Work Sarkar placed at Serial No. 8 has already joined before the office order was, stayed by the respondent No. 3. The respondents have refuted the allegation regarding any discrimination against the petitioner and stated that the petitioner was transferred from the Head Works Division, Ranchi to Distribution Division (Ratu Section), Ranchi by office Order No. 103 dated 26.6.2004 (Annexure -D). Thereafter, the Zonal Chief Engineer directed the Superintending Engineer to take a fresh decision after getting recommendation of the establishment committee and accordingly the order of transfer was cancelled by office Order No. 132 dated 28.10.2004 (Annexure -E). A direction has been made that the petitioner will be working under Swarnarekha Head Works Division, Ranchi where he was earlier posted and will get his salary etc. from the said place. It has been stated that though the petitioner has been asked to work at the said place and get his salary, the petitioner did not join at Head Works Division. Ranchi and forcibly made his attendance at Distribution Division, Ratu Section, Ranchi from 9.10.2004 to 8.11.2004, violating the departmental order.
(3.) MR . V. Shivnath, learned counsel appearing on behalf of the petitioner, submitted that there is no justification of cancelling the earlier order and forcing the petitioner to work at Swarnarekha Head Works Division, Ranchi. Learned counsel submitted that when the petitioner was already relieved pursuant to the order of transfer, there was no question of staying the same and the order as contained in Annexure -10 is itself illegal. Learned counsel relied on a decision rendered in Mahmood Azam Siddique and Anr. V/s. The State of Bihar and Ors., reported in (2003) 3 PLJR 139, wherein it has been held that once the notification relating to transfer of an employee is acted upon, nothing subsists and the notification of transfer becomes redundant for all purposes and as such question of cancelling or rescinding such order of transfer by State does not arise. Learned counsel submitted that since the earlier transfer order had already given effect to and the petitioner had submitted his joining, there was nothing left. By the impugned order as contained in Annexure - 10, there was no question to direct the petitioner to work at the Head Works Division, Ranchi and the said order is wholly unsustainable and is liable to be quashed.;