Allahabad High Court
Smt. Mithlesh Srivastava vs State Of U.P. & Others on 6 July, 2010
Author: Sanjay Misra
Bench: Sanjay Misra
Court No. - 3 Case :- WRIT - A No. - 16434 of 2009 Petitioner :- Smt. Mithlesh Srivastava Respondent :- State Of U.P. & Others Petitioner Counsel :- S.K. Kulshreshtha Respondent Counsel :- C.S.C.,Ashok Kr. Rai Hon'ble Sanjay Misra,J.
Heard Sri S.K. Kulshrestha, learned counsel for the petitioner and learned Standing Counsel.
The petitioner had earlier filed a Writ Petition No.52568 of 2008 against the order of transfer whereby the petitioner was transferred from Rajkiya Balika Uchchtar Madhyamik Vidyalaya, Vijay Nagar, Kanpur Nagar to Rajkiya Balika Inter College, Pukhraya, Kanpur Dehat and the same was dismissed on 13.10.2008. The petitioner filed Special Appeal No.881 of 2008 and this Court by the order dated 10.11.2008 (Annexure No.1 to the writ petition) set aside the order of learned Single Judge and permitted the petitioner to make a fresh detailed representation which was to be decided by the respondent. The petitioner alleges to have made a representation to respondent which has been decided by the impugned order and feeling aggrieved the petitioner has preferred this writ petition for setting aside the said order dated 19.12.2008.
Learned counsel for the petitioner has submitted that the petitioner is to retire within a year and as such he should not be transferred and order of transfer should be set aside. He also submitted that the petitioner had given as many as five reasons in her representation against the order of transfer which has not been considered in the impugned order and, therefore, also it requires to be set aside.
Having considered the submission of learned counsel for the petitioner the law is settled that transfer is an exigency of service and an employee cannot choose the place of his transfer. An exception is sometimes made when an employee who is to retire within 12 months and the authority accepts the claim of such an employee not to transfer him in the last year of his service. However, in the representation such a claim has not been made by the petitioner and, therefore, it is wrong to argue that the impugned order has not considered such aspect of the matter.
In so far as the reasons given in the representation of the petitioner against the order of transfer they are not such as to vitiate such an order of transfer which even otherwise is an exigency of service.
The law relating to challenge of an order of transfer is quite settled and it can be successfully challenged on the limited grounds of malafide if proved, lack of jurisdiction if established or if it is shown to be a colourable exercise of power which violates any legal right. None of the aforementioned grounds exist in the present case.
Consequently, when consideration of the petitioner's representation has been done by the authority and no error can be found in the impugned order dated 19.12.2008, the relief claimed in this writ petition cannot be allowed and it is accordingly, dismissed.
No order is passed as to costs.
Order Date :- 6.7.2010 pks