IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1281 of 2010. Judgement reserved on : 4.10.2010. Date of decision: 26.10.2010. Puran Chand ….. Petitioner. Vs. State of H.P. and others …. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioner : Mr. R.P. Singh, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General with Mr. R.M.Bisht, Dy. A.G. for respondents No. 1 to 3. Mr. Ashwani Kaundal, Advocate, for respondent No.4. Justice Kuldip Singh, J. The petitioner has prayed mainly the following relief in the petition: That the impugned Office Order transferring respondent No. 4 against the petitioner may kindly be quashed and set aside and the petitioner may kindly be allowed to continue at the present place of posting i.e. I&PH Division No. 2, Una, as Senior Assistant and to complete his normal tenure as envisaged in the transfer policy of the State. 2. The case of the petitioner is that on 24.11.2009, he was transferred from Tubewell Division, Gagret to SNP Circle Fatehpur. However, on his request the respondent No. 2 being the head of the department ordered the adjustment of the petitioner vide office order - 2 - Annexure P-1 at IPH Division No. 2 Una against the vacancy likely to occur due to the superannuation of Dhian Singh, Senior Assistant on 31.3.2010. On 1.4.2010, the petitioner submitted his joining report at 10.00 a.m. in pursuance of his transfer order, but the same was not diarized on the ground that the joining report Annexure P-2 had been sent to the competent authority by the Superintendent and the same was not returned back. On 2.4.2010, the petitioner again attended the office but he was informed that his joining report had not been received back. In order to avoid complication the petitioner sent telegram to respondent No.2 on 2.4.2010. 3. The petitioner attended the office on 3.4.2010 but he was not given any work in the office. On 4.4.2010 it was holiday. On 5.4.2010, the petitioner attended the office but till 12.30 p.m., no work was assigned to him. The petitioner came to know that respondent No. 4 had also met respondent No. 2, he submitted his joining report after getting himself relieved from IPH Circle, Una. The respondent No. 3 ignoring the fact that petitioner had already joined his duty on 1.4.2010 in compliance to Annexure P-1, allowed respondent No. 4 to join his duty on 5.4.2010, which action on the part of respondent No. 3 is wrong, illegal, arbitrary and malafide. 4. The respondents No. 1 to 3 have filed joint reply in which by way of preliminary submissions it has been stated that transfer of the petitioner has been made in public interest after due consideration with prior approval of the competent authority. The petitioner, who was under transfer from Tubewell Division Gagret to S.N.P. Fatehpur was adjusted - 3 - in IPH Division No. 2, Una after the retirement of Dhian Singh vide order dated 22.3.2010. This order was reviewed keeping in view other factors. The competent authority decided to adjust the petitioner in IPH Circle Una instead of IPH Division No. 2 Una as respondent No. 4 had completed his normal tenure in IPH Circle Una and was liable to be shifted and accordingly order was issued on 2.4.2010. The petitioner was relieved from Tubewell Division Gagret on 30.11.2009, he remained absent till 2.4.2010. The respondent No. 4 was relieved from IPH Circle Una on 4.4.2010 and he joined his duties in IPH Division No. 2 Una (sub- division Bangana) on 5.4.2010. There is no vacancy in IPH Division Una as such petitioner was required to join his duties in IPH Circle Una. On merits, the respondents No. 1 to 3 have more or less reiterated the same stand and have prayed for dismissal of the petition. The petitioner has filed rejoinder to the reply of respondents No. 1 to 3 and reiterated his case. 5. The respondent No. 4 has filed reply and has taken preliminary objections of maintainability, concealment of material facts, locus- standi. It has been stated that petitioner was adjusted in IPH Division No. 2 Una against the vacancy of Dhian Chand on superannuation, however, the petitioner did not join the place of posting in violation of rules. It has been submitted that in pursuance of transfer order No. IPH-EST-Trs-Sr.Asstt./2010-22464-72 dated 2.4.2010, the respondent No. 4 had joined on 5.4.2010. On 2.4.2010 the petitioner has been transferred to IPH Circle Una. The respondent No. 4 has prayed for dismissal of the writ petition. The petitioner has filed rejoinder - 4 - to the reply of respondent No. 4 and controverted the stand of respondent No. 4. 6. We have heard the learned counsel for the parties. The record was made available at the time of hearing of the writ petition and the same was perused. The learned counsel for the petitioner has submitted that with the approval of the government the petitioner was adjusted as Sr. Assistant against the vacancy which was to occur on the retirement of Dhian Singh Senior Assistant on 31.3.2010. It has been submitted that transfer of the petitioner on 2.4.2010 vide Annexure R-1 is without the approval of the government and is thus not sustainable. From the record, we find that vide letter dated 16.3.2010 Under Secretary (IPH) to the Government of H.P. conveyed respondent No. 2 the approval of the government to adjust Puran Chand, Senior Assistant under transfer from Tube Well Division Gagret to IPH Division No. 2, Una against the vacancy likely to be caused due to the retirement of Dhian Singh, Senior Assistant on 31.3.2010. The perusal of office order dated 2.4.2010 Annexure R-1 indicates that it has been issued in supersession of office order No. IPH-ESI-Trs. Sr.Asstt./2010-22464-72 dated 22.3.2010 adjusting the petitioner in IPH Circle Una in place of Sansar Chand and transferring Sansar Chand to IPH Division No. 2 Una (sub-division Bangana) in place of petitioner. The respondents from the record have failed to point out that office order dated 2.4.2010 Annexure R-1 has been issued with the approval of the government. Hence, the office order dated 2.4.2010 Annexure R-1 is not sustainable. - 5 - 7. In view of above discussion, the petition is allowed and office order Annexure R-1 is quashed. The respondents No. 1 to 3 are directed to allow the petitioner to join at IPH Division No. 2, Una against the vacancy occurred due to superannuation of Dhian Singh, Senior Assistant on 31.3.2010. The petitioner shall produce a copy of this judgement to respondent No. 3/ competent authority and on production of such copy the respondent No. 3/ competent authority shall comply with the judgement immediately. All pending application(s) stand disposed of. The record be returned immediately. (Justice Kurian Joseph), Chief Justice. October 26, 2010. (Justice Kuldip Singh), (Hem) Judge.