( 1. ) THIS is a revision against the order dated 16-5-1979, passed by the First Additional District Judge, Gwalior in Civil Miscellaneous Appeal No. 29 of 1979, against the order passed by the Seventh Civil Judge, Class II, Gwalior on 1-5-1979.

( 2. ) THE facts of the case are that the plaintiff Prakash Chandra Saxena has filed a suit for declaration and cancellation of the order of his transfer dated 3-1-1979 with the allegation that he is in permanent Government service since 1948. He is a gazetted officer since 1962 and he was transferred as gazetted Government servant to different places. The record of his service is clean and without blemish. He was transferred on 31st August, 1977 on the post of the Principal, Government Higher Secondary School, J. A. Sindh, Lashkar, Gwalior, on humanitarian grounds. He alleges that Madhya Pradesh Government, under the pressure of the Sindhi Society, by its order dated 27-10-1978, with an intention to give undue advantage to one Sumanlal Purswani, who was Principal of the Higher Secondary School, Gormi, was transferred to Lashkar. The Madhya Pradesh Government who is defendant No. 2, without any reason, transferred the plaintiff as Principal, Higher Secondary School, Taksal, Gwalior. It is also submitted that no consent for transfer was taken from the Collector, Behind or the Collector, Gwalior. This is essential under G. A. D. Memorandum No. 10983-C. R.-361, dated 24-8-1957. Defendant No. 2, on 3-11-1978, has again transferred the plaintiff to Bhitarwar. Prior to getting this order on 4-11-1978, the plaintiff presented himself at Taksal School at Gwalior.

( 3. ) WITH a view to accommodate one Shri P. D. Shrivastava (nonapplicant No. 5) for which there was no cause, the Government passed the order dated 3-11-1978 and then stayed the operation of the order dated 28-10-78 through defendant No. 3. Defendant No. 3 is the Divisional Superintendent of Education, Gwalior. The plaintiff alleges that this order is beyond the powers of defendant No. 3. The order that the plaintiff should remain at the Higher Secondary School, Taksal, clearly shows that the order of stay was mala fide and it was passed with an ulterior motive to accommodate Shri P. D. Shrivastava. This stay order was dated 10-11-1978 and it was again vacated by an order dated 1-12-1978. By an order dated 3-1-1979, the plaintiff was again transferred to Gormi and the order of transfer of Shri P. D. Shrivastava to Gormi was cancelled. The mention in the transfer order that it is in the interest of public is a colourable one. In fact, this order was passed only to accommodate Shri P. D. Shrivastava. Plaintiffs submission in the plaint is that the transfer order given to him were mala fide and were to harass him when the defendants knew that one of the wives of the plaintiff is suffering from brain tumour and the other is suffering from diabetic ulcer and both of the wives are under the treatment of eminent doctors at Gwalior, If the plaintiff is transferred, he will suffer irreparable loss, So also, his allegation is that by this transfer, the plaintiff is not getting any higher post and it is a practice that no one is transferred before completion of three years from one place to the other place. But, all these things have taken place just to accommodate Shri P. D. Shrivastava, who is very near to the Divisional Supreintendent of Education, Gwalior.

( 4. ) ALONG with the plaint, an application under Older 39, Rules 1 and 2 of the Code of Civil Procedure is filed and that application is supported by an affidavit. The allegations made in the plaint are again repeated in the application under Order 39, Rules 1 and 2, Civil Procedure Code as well as in the affidavit,

( 5. ) P. D. Shrivastava, who is also a defendant, has, in his written statement, stated that he has not in fact received the transfer order. He admitted in his written statement that the plaintiff did present himself at Taksal School, but as no order of transfer was