ORDER
S.J. Mukhopadhaya, J.
1. The petitioners having challenged the common order of transfer, they were heard together and are
JCR– (4)–43(HC) being disposed of at the initial stage with the consent of the parties.
2. The petitioners, who are Assistant Teachers were transferred from one school to another by orders No. 1379 and 1380 both dated 20th June, 2003. According to petitioners they joined their respective schools where they were transferred. After about one month the Joint Secretary. Human Resources Development Department, Government of Jharkhand issued impugned order No. 2/B-1-249/2002 : 2056 dated 23rd July, 2003 and cancelled ‘ the earlier orders of transfer No. 1379 and 1380 both dated 20th June, 2003 on the ground of certain irregularities in the matter of transfer.
3. According to petitioners their respective order of transfer dated 20th June, 2003 having acted upon by them there was no occasion for respondents to cancel such order. Their counsel relied on a Patna High Court decision in the case of “Mahmood Azam Siddique v. The State of Bihar,” reported in 2003 (3) PLJR page 139 wherein the Court held that once a notification relating to transfer of any employee is acted upon, nothing subsists and the notification of transfer becomes redundant for all purpose and as such the question of cancelling or rescinding such order of transfer does not arise.
4. The counsel for the State tried to distinguish the case of petitioners on the ground that they were excess to the strength where they were posted vide orders dated 20th June, 2003 and thereby the petitioners cannot claim that the earlier orders of transfer were given effect.
5. It is true that if there is no post to accommodate a person, no employee can claim that an order of transfer has been acted upon by giving joining to the Headmaster of the School/Head of the Department.
6. In the case of Smt. Vidhu Rani-petitioner of PW (S) No. 3703/2003 the respondents, have taken plea that only two posts of English Teachers were sanctioned in Girls High School, Doranda where she
was posted. The petitioner was the 3rd English Teacher, excess to the strength.
7. The counsel for the petitioner submitted that one Smt. Chhabi Chatterjee, English Teacher of Girls’ High School, Doranda having retired on 31st March, 2003 a post fall vacant against which the petitioner Smt. Vidhu Rani joined.
8. the respondents though took
similar plea in the case of Shikha Mitra-petitioner of WP (S) No. 3830/2003 but at
paragraph No. 6 to their counter-affidavit
themselves accepted that out of two posts,
of Bangla Teachers was vacant and against
the other post one Md. Einul Haque is
working.
9. Similar is a case of petitioner Anil Kumar Sinha of WP (S) No. 3659/2003. Though the respondents have taken plea that he is excess to the strength of Science and Mathematics Teacher but in the chart submitted by the Headmaster of the school it is shown that four posts of Science and Mathematics Teachers were created for the Bal Krishna Uehha Vidyalaya, Ranchi and the joining of the petitioner-Anil Kumar Sinha was accepted against a vacant post.
10. The aforesaid facts show that the respondents, issued impugned order No. 2056 dated 23rd July, 2003 in the cases of aforesaid three teachers without application of mind.
11. So far as Smt. Hirko Xess, Petitioner of WP (S) No. 3837/2003 is concerned she has not disputed that she is excess to the strength of History Teacher in the Balkrishna High School, Ranchi. The submission made on her behalf that she should be adjusted/accommodated against some other post of Assistant Teacher of other subject cannot be accepted. If no post of History Teacher is vacant in Balkrishna High School, Ranchi, the petitioner Smt. Hirko Xess cannot be posted against post of other subjects.
12. For the reason aforesaid, the order of cancellation of transfer No. 2056 dated 23rd July, 2003 so far as it relates to petitioners Smt. Vidhu Rani, Shikha Mitra and Anil Kumar Sinha are set aside, but the prayer of petitioner Smt. Hirko Xess
is rejected.
13. The writ petition WP (S) No. 3703/03 of Vidhu Rani; 3830/2003 of Shikha Mitra and 3659/2003 filed by Anil Kumar Sinha are allowed.
14. The writ petition WP (S) No. 3837/2003 preferred by Smt. Hirko Xess is dismissed.