Heard Sri G.C.Verma, learned counsel for the petitioner, Sri Vishal Verma for the opposite party No.4 and Sri A.M.Tripathi for opposite party No.2. Opposite party No.s 1 and 3 are represented by learned Standing counsel.
Petitioner has challenged the order dated 8.1.2010 whereby the mutual transfer of the petitioner and Sri Hari Moti has been canceled. Petitioner says that earlier the authorities had passed this order after considering various factors which included the legal aspect as well as the humane approach to the family situation of the petitioner. Such order should not be cancelled today putting the petitioner in a great family crisis. Petitioner has stated that his father Sri Sheetala Srivastava is suffering of Multiple Myeloma (Blood Cancer) and he is being treated at Sanjay Gandhi Post Graduate Institute, Lucknow. In this regard a certificate issued to this effect has been annexed as Annexure-12 at page 45. Petitioner's wife is also working as a part time Teacher in Kasturba Gandhi Awasiya Balika Vidyalaya, Katra Bazar. In such circumstances, he prays that in case wife and husband are allowed to perform their duties at one place, this will help in looking after the old father, who is suffering of such a serious disease, which is mostly recorded as hopeless within the sphere of medical sciences even today. The petitioner has tried to evoke mercy of the Court in the name of such a disease which can wreck a family emotionally and financially.
Sri Vishal Verma, on the other hand, has submitted that this is a contractual appointment on part time basis, hence no transfer, at all, is permissible under law. This is not a regular service where transfer is permissible. Secondly, the order has been passed by competent authority i.e. the Principal of the DIET and there is no infirmity in the order. He further says that in case the Court shows interference in one matter which is purely legal and has been passed in compliance of the powers conferred on the competent authority, a floodgate will be opened with hundreds of transfer petitions, which can not be allowed. He apprehends that in case such an order is passed it will adversely affect the implementation of the scheme.
This Court has given its anxious considerations towards the contentions. This court under Article 226 definitely has to pass orders in accordance with law but the Court has a duty towards a socialist Constitution. The preamble envisages a socialist democracy which ensures that there should be a just order in the society. This court as an exceptional case looking into the personal hardship of the petitioner and finding that the petitioner's family is suffering of cancer, shows inclination and likes to interfere with this order. This order should not be treated as a precedent because this is being passed in unique circumstances where the whole family is in great financial, social and -2- emotional stress and anything done to help the petitioner will go a long way to help the whole family. This family is part of our society. Rules need to be relaxed in exceptional circumstances.
Sri Vishal Verma and Sri A.M.Tripathi have prayed that they want time to file counter affidavit for which they are allowed three weeks' time. Rejoinder affidavit, if any, may be filed within a week thereafter.
List thereafter.
Meanwhile, operation and implementation of the order dated 8.1.2010 passed by the opposite party No.3 shall remain stayed.
This order, as passed above, shall not be treated as a precedent for other cases because it has been passed in extreme difficult circumstances of a particular family.
Order Date :- 3.2.2010 RKM.