1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5913 OF 2009 Arvind S/o.Adhar Jagtap, Age-40 years, Occu-Service, Presently working as Inspector, Legal Metrology, Pachora, R/o.Janata Vasahat, Near Railway Station, Pachora, Dist. Jalgaon PETITIONER VERSUS 1. The State of Maharashtra, Through its Secretary, Food and Civil Supplies Department, Mantralaya Mumbai. 2. The Controller of Legal Metrology, Maharashtra State, Mumbai. 3. The Assistant Controller of Legal Metrology, Jalgaon 4. Mr.S.R.Khairnar, Inspector of Legal Metrology, Jalgaon-II Division, Jalgaon RESPONDENTS Mr.S.R.Barlinge, learned counsel for the petitioner. Mr.S.V.Kurundkar, learned AGP for respondent no.1 to 3 Mr.S.D.Joshi, learned counsel for respondent no.4 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) 2 RESERVED ON : 06/10/2009 PRONOUNCED ON : 08/10/2009 ORDER : (Per A.V.POTDAR, J.) 1. By the present writ petition under Article 226 of The Constitution of India, the petitioner has questioned the legality of the transfer order passed on 24/07/2009 by the Controller of the Legal Metrology Department of State of Maharashtra, which arises out of the judgment and order passed by the Maharashtra Administrative Tribunal vide its judgment and order dated 17/07/2009. 2. Such of the facts which gave rise to file the present writ petition can be summarized as : The petitioner herein was in the service of the Metrology Department of Government of Maharashtra and was transferred to Pachora on 02/06/2005. This transfer was effected at his request on the ground of couple convenience and therefore was transferred to Pachora Division. It appears that the petitioner has submitted a representation to the 2nd respondent on 22/05/2009 requesting him not to transfer till completion of 6 years on the ground that his wife is serving at Chalisgaon which is very close from Pachora and his children are small and are taking education. According to the petitioner his such request is pending with the Department. Even though his request letter is pending with the Department, it appears that on 30/05/2009, he was transferred to Sindkheda from Pachora. It appears that he had filed an original 3 application no.492/2009 before the Maharashtra Administrative Tribunal, Mumbai, bench at Aurangabad. It appears that the respondents herein have filed their affidavit in reply in the said original application to oppose the original application filed by the applicant petitioner. If further appears that vide order dated 20/07/2009, the Learned Member of The Maharashtra Administrative Tribunal, Bench at Aurangabad pleased to set aside the transfer order dated 30/05/2009, but while passing the order, liberty was given to the respondents to issue fresh order of transfer to the applicant after due compliance of section 4(5) of The Transfer Act. It further appears that pursuance to the said liberty granted to the respondents, the respondent no.2 had issued transfer order dated 24/07/2009 by which the petitioner was transferred to Jalna Division which order is impugned in the present writ petition. 3. In response to the notice, respondents no.1 to 3 appeared in the writ petition and filed their affidavit in reply. Apart from the other contentions raised in the said affidavit in reply to justify and support the order dated 24/07/2009, the impugned order, the subject matter of the present writ petition, it is stated that the petitioner has been already relieved from Pachora Division and joined his new posting and also raised the objection about the jurisdiction of this Court to challenge the transfer order as according to the petitioner, the subject matter of the present writ petition is the transfer order dated 24/07/2009 and not the order passed by the Maharashtra Administrative Tribunal. 4 4. In this background, heard submissions of respective counsels for parties. On clear reading of the prayers in the present writ petition, the order passed by the Maharashtra Administrative Tribunal vide judgment dated 17/07/2009 by which the earlier transfer order of the petitioner dated 30/05/2009 was set aside and the liberty was granted, is even though the prayer clause “B” of the present writ petition. It can not be considered as whether any liberty to be granted or not. It is under the discretion of the Tribunal and which discretion can not be taken away while exercising the powers under the extraordinary jurisdiction under Article 226 of The Constitution of India. So far as prayer clause “C” is concerned about the transfer order dated 24/07/2009, this Court is not the proper forum to challenge that order, but the Maharashtra Administrative Tribunal is the only proper forum to challenge that order. So far as the prayers in terms of prayer clause “D” to be agitated while challenging the order dated 24/07/2009 before the proper forum i.e. before the Maharashtra Administrative Tribunal. Thus considering this legal embargo, the petition is devoid of any merit, and hence liable to be dismissed with no order as to costs. 5. Even though we have dismissed the present writ petition as having no merits, however, we grant liberty to the petitioner to file original application before the Maharashtra Administrative Tribunal to challenge the transfer order dated 24/07/2009 and also to pray before the Tribunal to continue him in the Pachora Division till the completion of his tenure as provided under the Transfer Act, 2005 or 5 till completion of education of his minor children. With this liberty, the petition stands disposed of with no order as to costs. We are hereby making it clear that the Tribunal has not to be influence with the observations made by us in this order. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/OCT 2009/wp5913-09