IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1948 of 2010 1. Bipin Kumar Sinha, son of Late Veda Nandan Prasad Sinha, resident of North Mohanpur Punaichak, near Devi Asthan, Patna… ………………… Appellant/Review Petitioner. Versus 1.The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2.The Secretary, Building Construction Deptt. Vishwashariya Bhawan, Patna. 3.Special Secretary, Building Construction Department, Vishwashariya Bhawan, Patna. 4.Hridaya Narain Jha, Special Secretary, Building Construction Department, Vishwashariya Bhawan, Patna. 5.Under Secretary, Building Construction Department, Patna 6.Ghanshyam Ram, Under Secretary, Building Construction Department, Patna. 7.The Resident Commissioner, Govt. of Bihar, Bihar Bhawan, 5 Kautilya Marg, New Delhi. 8.Phuleshwar Prasad Mandal, son of Late Hari Mandal, resident of village- Muskipur, P.O.-Jamalpur Gogari, District- Khagaria………………………Respondents/Respondents 9.Sudhir Kumar father’s name not known to Appellant, the Secretary, Building Construction Department, Vishwashariya Bhawan, Patna……………… ………………………..Performa/Respondent/Respondent. For the appellant : Mr. Akash deep For the Pvt. respondent : Mr. Dinu Kumar For the State respondent : Mr. Gautam Bose, AAG-8 : Mr. Ajay Kr., AC to AAG-8 With C.W.J.C. No. 5739 of 2010 For the petitioner : Mr. Dinu Kumar For the State respondent : Mr. Gautam Bose, AAG -8 : Mr. Ajay Kumar AC to AAG-8 5. 25-10-2011 Heard the parties. The L.P.A. has arisen out of order dated 10th August, 2010 passed in a writ petition bearing C.W.J.C. No. 11094/2010 as well as order dated 22.9.2010 passed in Civil Review No. 244 of 2010. The aforesaid writ petition was preferred by respondent No. 8, Phuleshwar Prasad Mandal against an order dated 29.6.2010, transferring him from Bihar Bhawan, New Delhi to his substantiate post of Assistant 2 Engineer in the office of Estimating Officer, Gardanibagh Building Division, Patna. That order is annexed as Annexure- 9 to the writ petition bearing C.W.J.C. No. 11094 of 2010. It shows that altogether 27 Assistant Engineers were transferred and posted at different places including the writ petitioner but in column 4, his place of posting at the time of transfer was not mentioned and only a remark was recorded that he has been released from suspension. The writ Court, by the order under appeal quashed the transfer order of the writ petitioner on the ground that earlier the writ petitioner was suspended by order dated 15.2.2010 and his Headquarter during suspension was determined to be office of Superintending Engineer, Building Circle, Patna. It was noticed by the Writ Court that the writ petitioner has preferred writ petition bearing C.W.J.C. No. 5739 of 2010, challenging the order of suspension and by an order passed on 19.4.2010, the Writ Court had stayed the operation of the order of suspension. According to the Writ Court, the writ petitioner should not have been transferred to Patna without reinstatement on his earlier post of Resident Engineer at Bihar Bhawan, New Delhi. On this technical ground, the writ petition was allowed. 3 Subsequently by an order dated 16.12.2010 passed in this appeal, a Division Bench of this Court directed for hearing of C.W.J.C. No. 5739 of 2010 together with the present appeal in order to avoid conflicting decisions and in the interest of justice. Hence, both the matters have been heard together. It appears that at the time of transferring the writ petitioner on 29.6.2010, the authorities had considered the relevant facts and transferred the writ petitioner treating him as free of suspension, may be on account of interim order. This is also apparent from Annexure-5 to the L.P.A. which is an order dated 13.5.2010 staying the suspension of the writ petitioner in view of interim order dated 19.4.2010. Now more than one year has elapsed and from the submission for the parties we find that the charges against the writ petitioner are mainly on account of his absence from Bihar Bhawan, New Delhi when the Departmental Minister visited New Delhi. There are materials to indicate that the writ petitioner had come to Patna at the relevant time on account of official work. In such circumstances, in our view, there is no justification for continued suspension of the petitioner when charges have not been served upon him and departmental 4 authorities have only framed charges against the writ petitioner but no further steps have been taken to hold the departmental proceeding on account of pendency of these cases. According to the stand of the State also charge was framed on 9.4.2010 but no further steps have been taken. Accordingly to Rule 9 (7) of the Bihar Government Servants (Classification Control and Appeal) Rules 2005 charge sheet must be framed within three months, and if on expiry of extended period of four months, charge is not framed, the suspension order stands revoked. The framing of the charge sheet is required to be prompt and within the fixed period. By necessary implication, the charge sheet must be served upon the concerned employee without any delay. But in the present matter admittedly no further action was taken only on account of pendency of cases in this Court and the interim order against suspension. There was no interim order debarring the State to stay service of charge or the departmental proceeding. In such circumstances, the prayer made in CWJC No. 5739 of 2010 is allowed and further operation of since suspension date of its stay is quashed. So far as order of transfer is concerned that is adversely affecting the appellant, Bipin Kumar Sinha who was posted as 5 Resident Engineer in place of the writ petitioner, Bhuneshwar Prasad Mandal on 25.2.2010. He is aggrieved by the order dated 10.8.2010 whereby this Court allowed C.W.J.C. No. 11094 of 2010 and quashed the transfer order dated 10.8.2010. His grievance was that he is adversely affected and the writ petition was allowed without hearing him. In fact, he was not impleaded as a party in the aforesaid writ petition which was filed on 16.7.2010. A Review petition was also dismissed only on the ground that the transfer order was required to be quashed by the Writ Court on account of interim order passed in C.W.J.C. No. 5739 of 2010 whereby order of suspension was stayed requiring reinstatement of the writ petitioner. In such circumstances, the appellant not only preferred the present L.P.A. but also filed C.W.J.C. No. 1518 of 2010 for seeking remedy against the order passed in C.W.J.C. No. 11094 of 2010 and Civil Review No. 244 of 2010. The said writ petition was dismissed as withdrawn by order dated 18.11.2010, but liberty was granted that the withdrawal of the writ petition would be without prejudice to the rights of the appellant, to raise all issues before the Bench hearing this L.P.A. in accordance with law. 6 The only issue which is to be decided in this appeal is whether the order of transfer in respect of the writ petitioner/respondent No. 8 herein requires interference or not. The other technical issues which were raised before us are of no significance. On going through the order of transfer it is found that the same was passed in respect of large number of Assistant Engineers. There is no case of mala fide against any of the respondent authorities nor the order of transfer suffers from lack of jurisdiction or power in the authority who issued the order. The Writ Court interfered with the order of transfer only on account of an interim stay of the suspension. In our considered view, the ground for interfering with the order of transfer was not related to the merits of the transfer order. No illegality was found in the transfer order. If the suspension order had been stayed, the effect would be upon the status of the writ petitioner, respondent No. 8 and he would be entitled to full salary on account of being treated to be in service out of suspension. The order of stay would not relate to the issue of his posting or working at a particular place. In that view of 7 the matter, in our considered view the authorities could be directed to reinstate the writ petitioner on any suitable post without insisting that he (respondent No. 8) must be reinstated on the post he held in Bihar Bhawan, New Delhi. Hence, we allow this appeal and set aside the order dated 10.8.2010 whereby CWJC No. 11094/2004 was allowed. As a result, that writ petition stands dismissed. We are aware of some orders which were passed for showing compliance with the interim order granting stay of suspension. Those orders interfering with the posting of the appellant or of the writ petitioner/respondent No. 8 shall be treated to be of no consequence. As a result, the appellant shall continue on his post at Bihar Bhawan, New Delhi till the authorities decide to post him at some other places on account of any independent decision in future. Similarly respondent No. 8/writ petitioner, Bhuneshwar Prasad Mandal shall be posted by the authorities as per order dated 29.6.2010 which we have found to be a lawful order. It goes without saying that now the authority shall ensure that disciplinary proceeding against the writ petitioner, respondent No. 8 is not delayed any further. If the salary of the writ petitioner /respondent No. 8 has been dislocated, 8 payment of the same shall be made without any delay. The L.P.A. is allowed to the aforesaid extent. The writ petition against suspension also stands allowed. Mkc/ (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)