Jagdish Chand vs State Of Himachal Pradesh And Others

L. Narayana Swamy, CJ

By way of the instant writ petition, the petitioner, an Assistant Engineer in Jal Shakti Vibhag, Bilaspur Division, assails the order of transfer, dated 4th September, 2020 (Annexure P­4), whereby the fourth respondent has been transferred to Jal Shakti Sub Division, Bilaspur against vacant post, with the prayer to set aside the transfer of the fourth respondent.

The case of the petitioner is that on 31st August, 2020, he has been transferred from Jal Shakti Sub­Division Jukhala to Jal Shakti Sub­Division Bilaspur, pursuant to which he relinquished the charge of office of the Assistant Engineer at Jukhala on 3rd September, 2020, and reported at the transferred place on 4th September, 2020 by assuming the charge of office of Assistant Engineer, Jal Shakti Sub Division Bilaspur and the copy of the assumption report has also been received by respondent No. 1 at 10.46 a.m.

The contention of the learned counsel for the petitioner is that despite the fact that the petitioner has reported and assumed the charge at the transferred place on 4th September, 2020, pursuant to transfer order, dated 31st August, 2020, the official respondents, without taking into consideration the said factum, transferred the fourth respondent to the said place, on 4th September, 2020 itself, as if it was a vacant post.

Learned counsel for the petitioner submitted that since the petitioner has assumed the charge on 4th September, 2020 at Jal Shakti Sub Division Bilaspur, in view of the transfer order, dated 31st August, 2020, the post at Jal Shakti Sub Division Bilaspur, where he has working after assuming the charge, is not a vacant post, therefore, the impugned transfer order, dated 4th September, 2020, transferring the fourth respondent in place of the petitioner is to be set aside as it is contrary to the transfer policy.

Per contra, learned Additional Advocate General, while supporting the impugned transfer order, submits that the transfer policy is not applicable in the instant case since both, the petitioner and the fourth respondent, are Class­I Officers. He further argues that before the impugned transfer order, dated 4th September, 2020 has been passed, the transfer order of the petitioner, dated 31st August, 2020, has been cancelled, hence, the post at Jal Shakti Sub Division, Bilaspur was vacant at the relevant point of time and accordingly, the fourth respondent has been transferred to the said place. He has, therefore, prayed for dismissal of the writ petition.

Learned counsel representing the fourth respondent submits that the order of transfer of the petitioner, dated 31st August, 2020, has been cancelled and only thereafter, the fourth respondent has been transfered to Jal Shakti Sub Division Bilaspur, which post was lying vacant at the relevant time. He further submits that pursuant to the impugned transfer order, dated 4th September, 2020, the fourth respondent has been relieved and he has joined at Jal Shakti Sub Division Bilaspur, though, charge has not been handed over to him.

We have heard learned counsel for the respective parties.

Normally, this Court does not interfere in the transfer matters. The apex Court as well as this Court, in a catena of cases, has repeatedly observed that transfer is an incidence of service and it is for the State/employer to effect the transfers. The employees working under the State are governed by the transfer policy, which are in the nature of guidelines, and the transfers are ordinarily effected on the basis of the said guidelines.

In the instant case, the petitioner was transferred from Jal Shakti Sub Division Jukhala to Jal Shakti Sub Division Bilaspur on 31st August, 2020. In sequel thereto, the petitioner assumed his charge on 4th September, 2020 at 10.46 a.m. Thereafter, on the same day, the fourth respondent has been transferred to the said place as if it is a vacant post. In the impugned transfer order, though it is mentioned that the transfer of the fourth respondent has been made against the vacant post, but, the fact of the matter is that the respondents themselves have transferred the petitioner to the said place vide transfer order, dated 31st August, 2020. Unless the said transfer order is cancelled, it cannot be presumed that it is a vacant post, more particularly, when the person, who has been transferred to the said place, has already assumed the charge of the said post.

The facts, inter alia, reveal that the petitioner and the fourth respondent claim that they have been transferred by the competent authority resulting in their posting at the same place, hence, they are permitted to perform their duties at one place.

In the light of the above facts, in order to resolve the dispute, we have to adopt the principle, namely, when the parties have equal rights, the condition of the possessor is better. Though both the transfer orders have been passed by the same authority, but, the impugned transfer order, transferring the fourth respondent to the place, where the petitioner has already assumed the charge of office, on the pretext that the said post is vacant, is wrong and cannot stand in the eyes of law.

In common parlance, the order passed at later point of time always is preferable, but, in the facts and circumstances of the instant case, the impugned transfer order has been passed without noticing the fact that the petitioner has already assumed the charge of office at Jal Shakti Sub Division on 4th September, 2020 itself.

Under these circumstances, the action of the official respondents in transferring the fourth respondent against the petitioner, presuming the same to be the vacant post, is an error committed by them. Under these circumstances, the impugned transfer order, transferring the fourth respondent to the place of the petitioner, who already has assumed the charge, is to give way to the transfer of the petitioner.

Accordingly, we hold that the fourth respondent has not been transferred to the vacant post, but to a place where the petitioner is already working on assuming his charge and the impugned transfer order, dated 4th September, 2020, transferring the fourth respondent to Jal Shakti Sub Divisional Bilaspur against the petitioner is contrary to the guidelines/Transfer Policy.

With these observations, the petition stands disposed of, so also the pending miscellaneous applications.

Copy dasti.