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2009 DIGILAW 2638 (ALL)

MUKESH KUMAR v. STATE OF U. P.

2009-07-23

AMITAVA LALA, SHISHIR KUMAR

body2009
JUDGMENT Hon’ble Amitava Lala, J.—This writ petition has been made by writ petitioner to quash the order dated 23rd June, 2009 by which respondent No. 5 was transferred to the institution to work in the category of Lecturer in Economics in which petitioner was working on honorarium basis. 2. Petitioner contended that there is a clause in the Advertisement dated 18th July, 2008 by which it has been said that in respect of the posts, which are already advertised, no one will be transferred and if it is so, it is not legally binding as it has been issued by the Secretary, U.P. Higher Education Service Commission. The advertisement is numbered as 44. In the advertisement, there is a provision that the last date of submitting application is 29th August, 2008. Admittedly, till this date nothing has happened with regard to such advertisement No. 44 dated 18.7.2008. However, respondent No. 5 was transferred on 23rd June, 2009 and he joined on the transferred post on 26th June, 2009. Petitioner herein was also relieved from his service on honorarium basis on 25th June, 2009. It is undoubtedly true that petitioner’s intention is to accommodate him so that he can take an opportunity to be regularised. But factually he made an application for regular appointment. Therefore, in case of such regular appointment through U.P. Higher Education Services Commission, cannot be construed also where he was working on the basis of honorarium so that he can have any legitimate expectation with regard to the same. However, he has relied upon an amended portion of the Rules being Uttar Pradesh Higher Education Aided Colleges Transfer of Teachers Rules, 2005. The amendment has taken effect on 15th February, 2006. The amended portion of the sub-rule (5) under Rule 4 is being quoted below : “(5) The teacher shall be transferred against such posts for which salary is paid from the salary payment account. The management of the College before giving it consent to any teacher, shall ensure that no enquiry or any proceeding is pending against the teacher concern and the post to which he has been considered to be appointed by transfer shall not be advertised by the Uttar Pradesh Higher Education Services Commission. The management of the College before giving it consent to any teacher, shall ensure that no enquiry or any proceeding is pending against the teacher concern and the post to which he has been considered to be appointed by transfer shall not be advertised by the Uttar Pradesh Higher Education Services Commission. The facility of single transfer shall also be available against such post which, till the date of commencement of the Uttar Pradesh Higher Education Aided Colleges Transfer of Teachers (First Amendment) Rules, 2006 have been advertised by the Uttar Pradesh Higher Education Services Commission by the selection on such post has not been made.” 3. According to Mr. Ashok Khare, learned Senior Advocate assisted by Mr. K.M. Asthana, learned counsel that by virtue of third paragraph of such sub-rule, single transfer shall also be available against such post which, till the date of commencement of the Uttar Pradesh Higher Education Aided Colleges Transfer of Teachers (First Amendment) Rules, 2006 has been advertised by the Uttar Pradesh Higher Education Services Commission but the selection on such post has not been made. They interpreted that such Rule is not applicable in the present position, it is restricted only till 15th February, 2006 i.e. the date of commencement of the Rules, as mentioned herein. 4. On the other hand, Mr. M.D. Singh ‘Shekhar’, learned Senior Counsel appearing for private respondent No. 5 and learned Standing Counsel for the State have contended before us that petitioner has no locus standi to challenge the transfer of regular teacher, which has been approved by the Commission as well as by the State. Petitioner has been relieved from earlier post and he has joined, therefore, by virtue of the provision of law, he will neither be able to go back to the original post nor he will be accommodated elsewhere because his single transfer is permitted in accordance with law. So far as aforesaid sub-rule (5) is concerned, it is prospective in nature. 5. In reply, Mr. Asthana has relied upon a Division Bench Judgment of this Court reported in 2008 (4) ADJ 304 (DB), Anurag Tripathi and others v. State of U.P. and others, in which the Division Bench has formulated certain points with regard to part time teachers, who have been aided by Government Order dated 7.4.1998. 5. In reply, Mr. Asthana has relied upon a Division Bench Judgment of this Court reported in 2008 (4) ADJ 304 (DB), Anurag Tripathi and others v. State of U.P. and others, in which the Division Bench has formulated certain points with regard to part time teachers, who have been aided by Government Order dated 7.4.1998. The scheme for engagement of honorarium teachers have been introduced by U.P. Act No. 42 of 2006. 6. We have carefully considered the pros and cons of the matter, as referred above, but in spite of best efforts being made by Mr. Ashok Khare, learned Senior Advocate assisted by Mr. K.M. Asthana learned counsel, we are not convinced ourselves to pass any affirmative order in this respect for the reasons giving herein. Petitioner being honorarium teacher cannot have any right to claim for regularisation in service in a particular institution. At best, he can be accommodated as per Rules and Regulation of U.P. Higher Education Service Commission and in such circumstances by way of regular interview he can be selected for any of the colleges. Therefore, he has no locus standi to challenge the appointment of transfer of regularly appointed teacher. Secondly, the provision which has been inserted on 15th February, 2006 under Uttar Pradesh Aided Colleges Transfer of Teachers Rules, 2005, on the basis of self-exigency. Exigency is that in spite of advertisement, posts were not filled up for which the teaching of the institution was being suffered and such situation is prevailing now. Here also the advertisement was admittedly being made long before i.e. on 18th July, 2008 and the application was made on 29th August, 2008 and till this date, no selection has been made. This situation cannot continue for a longer period, therefore, principles of Rules 2005 will be applicable even in such situation. So far as the petitioner is concerned, petitioner at best can continue till regularly appointed teacher joins the post and since he was relieved by joining of the regularly appointed teacher on transfer. His plea is that the transfer is fictitious in nature to ignore the right of legitimate expectation of a teacher on honorarium basis, cannot be accepted. There is no embargo to that extent. His plea is that the transfer is fictitious in nature to ignore the right of legitimate expectation of a teacher on honorarium basis, cannot be accepted. There is no embargo to that extent. In case, any teacher is even engaged by selection on various colleges and he seeks transfer from one college to another and if such regular teacher is engaged there, in such way, a person on present working on honorarium basis cannot put himself on a better right to that of such teacher. 7. Therefore, in totality, we do not find any reason to pass any order in favour of petitioner and as such, the writ petition is dismissed, however, without imposing any cost. Interim order, if any, stands vacated. ————