S.B. Civil Writ Petition No.11413/2009 Ajay Kumar Kewaliya. vs. State of Rajasthan and Others. Date : 8.2.2010 HON'BLE MR. PRAKASH TATIA, J. Mr.Vinay Jain, for the petitioner. Mr.GR Calla ) for the respondents. Mr.SKM Vyas ) - - - - - Though the writ petition has been listed for orders on application filed under Article 226(3) of the Constitution of India, but learned counsel for the parties argued the matter on merits. The petitioner has challenged the order dated 3.12.2009 by which the petitioner's transfer order dated 15.10.2009 has been cancelled after the petitioner's joining the duties in pursuance to the transfer order dated 15.10.2009. According to the petitioner, once the transfer order gets executed, then fresh transfer order can be passed but the transfer order cannot be cancelled. Learned counsel for the respondents submitted that the writ petition is not maintainable in view of the availability of alternate remedy and in this regard, they relied upon the judgment of this Court delivered in the case of Om Prakash Leela vs. State of Rajasthan & Ors. (SB Civil Writ Petition No.957/2003) decided on 9.4.2003. On merits, it has been submitted that the transfer order of the petitioner was cancelled by the respondent State in view of the policy that if a spouse is required to be accommodated, then appropriate order can be passed by the State Government so that the husband and wife both may live at one place. I considered the rival submissions and perused the facts of the case. In view of the decision of this Court in the case of Gangaram Bishnoi. vs. State of Rajasthan & Ors. reported in WLR 1994 Raj. 537, the transfer order, after joining the duties cannot be cancelled and, therefore, the order dated 3.12.2009 is absolutely illegal and when the order is wholly void or illegal, and when that finding can be recorded without any investigation of fact or on the basis of admitted facts and then it is not necessary to sent the petitioner to approach the Tribunal when the writ petition has already been entertained by this Court. In this fact situation and admitted position of facts, there is no reason to sent the matter to the Tribunal. Learned counsel for the State – Mr.GR Calla pointed out that the order dated 3.12.2009 is not the order cancelling the transfer order dated 15.10.2009 and it is a mere posting order. If it is so, then the illegality is more grave as the petitioner was sought to be posted at different place without there being any transfer order. In the garb of posting, transfer order cannot be passed. In view of the above, this writ petition is allowed and the order dated 3.12.2009 is quashed and set aside. (PRAKASH TATIA), J. S.Phophaliya