IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5446 of 2010 1. MUNDRIKA PRASAD SINGH S/O LATE RAMESHWAR SINGH R/O MOHALLA - COLLEGE ROAD AT AND P.S -FATUA, DISTRIC - PATNA, AT PRESENT POSTED AS EXECUTIVE ENGINEER, NREP, P.S.- GANDHI MAIDAN AT AND DISTRICT - PATNA. Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, RURAL WORKS DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE DEPUTY SECRETARY, RURAL WORKS DEPARTMENT, GOVT. OF BIHAR AT PATNA. 4. THE DISTRICT OFFICER CUM DISTRICT MAGISTRATE, PATNA. 5. THE DEPUTY DEVELOPMENT COMMISSIONER ,PATNA. 6. MR. RAM CHANDRA SHARMA ,EXECUTIVE ENGINEER, S/O NOT KNOWN TO THE PETITIONER RURAL WORKS DEPARTMENT, VISHWSARAIYA BHAWAN, BAILY ROAD, PATNA ----------- For Petitioner : Mr. M.L.Verma, Senior Advocate Mr. Alok Kumar Verma, Advocate For the State : Mr. Rajesh Kumar, GP VIII For Respondent no. 6: Mr. Abhay Kumar Singh, Sr.Advocate M/s R.N. Shukla, Praveen Kumar and Manish Sahay, Advocates --------- 5. 07.07.2010 Heard learned Counsel for the petitioner, learned Counsel for the State and learned Counsel for private respondent no. 6. The petitioner is an employee of the Road Construction Department on deputation under the NREP in the Rural Development Department. He was impleaded as respondent no. 7 in CWJC No. 16506 of 2008 filed by another in a controversy with regard to transfer and posting. The stand taken on behalf of the petitioner therein (as respondent no. 7) recorded in the order dated 15.1.2009 was as under:- “At this stage, learned senior counsel Mr. Vinod Kanth appearing for respondent No.7 intervened to submit that insofar as respondent No.7 is concerned, he makes no issue with regard to his orders of transfer and posting and as a government servant is willing to join at any place that the respondents may post him, whether it be at Muzaffarpur or at Patna or at a third place within the State of Bihar. He is ready to comply with such orders of transfer.” 2 The Court noticing the nature of the controversy while dismissing the writ application observed that both the petitioner therein and the respondent no. 7 i.e. the present petitioner, be posted at any place apart from Patna. The petitioner is acknowledged not to have questioned this order. The fact that the petitioner of CWJC No. 16506 of 2008 may have questioned the order, in the opinion of this Court, cannot ennure to the benefit of the present petitioner, more so in light of concession on his behalf noticed therein. The petitioner was sought to be repatriated to his parent department by order dated 20.11.2009 under an order issued by the Rural Works Department. He came to this Court in CWJC No. 16135 of 2009 with the grievance that it was only the Rural Development Department which was competent to order his repatriation. This Court on 26.11.2009 noticed that the controversy was one of procedure only and left it to the Secretary, Rural Development Department, in light of notification dated 18.6.2009 to take an appropriate decision with regard to him. It is apparent from the order of this Court dated 26.11.2009 that the earlier order of this Court dated 15.1.2009 in CWJC No. 16506 of 2008 was not brought to the attention of the Court by the petitioner, as otherwise this Court would have passed orders in consonance with its earlier orders. The counter affidavit of the respondents does not deny that the subsequent order dated 26.3.2010 posting respondent no. 6 in place of the petitioner without an alternate posting to 3 him indirectly unseats the petitioner from his post of deputation by the Principal Secretary, Rural Works Department, contrary to the directions of the Court dated 26.11.2009 for appropriate orders by the Principal Secretary, Rural Development Department. The reliance of the State on an order dated 4.6.2010 of the Rural Works Department referring to an earlier decision dated 26.5.2010 of the same department that the power to deal with persons like the petitioner on deputation stood reverted to the Rural Works Department, does not impress the Court. What may be subsequent developments shall not vitiate the directions contained in the order dated 26.11.2009 which has to be complied with forthwith. This order has not been questioned in appeal or modified at the request of either party. The State respondents cannot evade compliance of the orders of this Court by delay to urge that now the basic facts had undergone a change subsequently on 26.5.2010. The State officials cannot take advantage of their own lapses. The order dated 26.3.2010 to the extent it affects the petitioner in teeth of the order of this Court dated 26.11.2009 is a nullity and cannot operate to the prejudice of the petitioner. Counsel for the respondent no. 6 has very fairly acknowledged that he is not working on the post in pursuance of the order dated 26.3.2010. Needless to add that the petitioner shall continue to hold the present place of posting on deputation till the matter is appropriately decided by the authority designated in the order dated 26.11.2009. 4 The Principal Secretary, Rural Development Department, while considering the issue with regard to the petitioner in the light of Court’s order dated 26.11.2009 shall adequately ensure due observation and compliance of the order of this Court dated 15.1.2009 in CWJC No. 16506 of 2008 in so far as the petitioner is concerned. This Court does not consider it necessary in the present controversy to go into the larger issue sought to be raised on behalf of the petitioner with regard to the Rules of Executive Business and the manner in which administrative decisions with regard to transfer of administrative powers from one department to the other i.e. Rural Development Department to Rural Works Department or vice versa etc. are to be taken. That is left open to be decided in an appropriate case as and when occasion may arise. The Principal Secretary, Rural Development Department, is directed to take a decision with regard to deputation/repatriation of the petitioner in light of the discussions as aforesaid within a maximum period of one month from the date of receipt and/or presentation of a copy of this order before him. The writ petition stands allowed to the extent indicated. Snkumar/- (Navin Sinha,J.)