IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17997 of 2008 RAM YATAN YADAV Versus THE STATE OF BIHAR & ORS ----------- 2/ 15/01/2009. Heard learned counsel for the petitioner and learned counsel for the State. In view of the limited issue on which the writ application can be disposed on the pleadings of the petitioner, this Court does not consider it necessary to adjourn the matter to await a counter affidavit. By an order dated 14.11.2008 the petitioner has been transferred from Lakshmipur division to Chakai. The order, however, states that he is being transferred on the vacancy of junior engineer to arise after superannuation of the present incumbent in February, 2009. Learned counsel for the petitioner urged that the petitioner could not be transferred against an anticipated vacancy, but only against a subsisting vacancy. It was urged relying upon the statement made on oath in paragraph-3 of a supplementary affidavit filed today that the present incumbent on the post has not been transferred elsewhere and, therefore, there subsists no vacancy at Chakai for the petitioner to join. This has left the petitioner in a lurch. Learned counsel for the State from annexure-11 2 to the supplementary affidavit of the petitioner submitted that it was also an issue if the petitioner had been released from Lakshmipur and another transferred in his place. These are the issues for the respondents to examine on the administrative side. The petitioner cannot be posted against an anticipated vacancy. If that be so, the order of transfer shall become effective only when the present incumbent retires in February, 2009. If there be no vacancy on the transferred post, the question of relieving the petitioner from his previous posting and leaving him in the lurch also does not arise. For that limited purpose annexures-8 and 9, the orders of transfer and communication thereof, both dated 14.11.2007, are accordingly set aside. Respondent No.3 is directed to decide the issue of continuance of the petitioner at Lakshmipur if a present vacancy be available there or Chakai as the case may be, in accordance with law. In the aforesaid controversy, this Court is satisfied that in either event the petitioner shall be entitled for his salary for the period in question. The writ application stands disposed. KC ( Navin Sinha, J.)