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2010 DIGILAW 1294 (ALL)

RAKESH KUMAR YADAV v. STATE OF U. P.

2010-04-22

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Gangadeen Gauri Shankar Inter College, Kanpur Nagar is an aided and recognized institution under the provisions of the Intermediate Education Act. Provisions of U.P. Secondary Education Services Selection Board Act, 1982 are applicable to the teachers of the said institution. 2. Vacancy on the post of Principal was requisitioned and was ultimately advertised by the Secretary, U.P. Secondary Education Services Selection Board vide Advertisement No. 1 of 2002. 3. While the proceedings for selection were pending finalization, the Joint Director of Education on the report of the District Inspector of Schools, Kanpur Nagar and on a letter written by the Manager dated 24.1.2008 permitted the transfer of respondent No. 7 on the post of Principal of the institution. Respondent No. 7 was working as Principal in C.P.K.U. Inter College, Musa Nagar, Kanpur Dehat. Because of such transfer order the select panel which was notified by the Selection Board on 24.12.2009 wherein the name of the petitioner finds mention at serial No. 2 was not given effect to on the plea that post has been filled by transfer. It is against this order that the present writ petition has been filed. 4. This Court while noticing the judgment in the case of Asha Singh v. State of U.P. and others, 2007(5) ADJ 552 prima facie found that the transfer was illegal inasmuch as the vacancy had already been advertised under Advertisement No. 1 of 2002. The Court held that the transfer cannot be resorted, once the vacancy has been advertised. It will not be out of place to record that the judgment stands affirmed by the Division Bench of this Court in the case of Amita Sinha v. State of U.P. and others, 2008(8) ADJ 526 (DB). 5. The Court, therefore, while entertaining the present writ petition on 29.3.2010 passed a detailed order calling upon the Secretary to hold an enquiry in the episode which in the opinion of the Court had deprived the duly selected candidate of his right to be appointed as Principal. 6. While the writ petition was pending before this Court the Additional Director (Madhyamik) on 23.3.2010 passed an order cancelling the approval earlier granted to the transfer of respondent No. 7 namely Dr. Ajay Pal Singh. This order of the Additional Director has been subjected to challenge by means of separate writ petition filed by Dr. 6. While the writ petition was pending before this Court the Additional Director (Madhyamik) on 23.3.2010 passed an order cancelling the approval earlier granted to the transfer of respondent No. 7 namely Dr. Ajay Pal Singh. This order of the Additional Director has been subjected to challenge by means of separate writ petition filed by Dr. Ajay Pal Singh being Writ Petition No. 18559 of 2010. It has been contended that since the petitioner has already joined, no fresh appointment could be made, the impugned order is illegal. 7. Since both the writ petitions pertain to the issue of transfer subsequent to the vacancy being advertised, both are being clubbed together and are being decided by means of this common judgment. 8. The controversy with regard to the appointment by way of transfer being resorted to under the provisions of U.P. Secondary Education Services Selection Board Act, 1982 referable to Section 16 of the Act has been subject matter of consideration before the Single Judge in the case of Asha Singh (supra) and thereafter before the Division Bench in the case of Amita Sinha (supra). The Division Bench while affirming the judgment of the Single Judge has held that appointment by way of transfer cannot be resorted to, once the vacancy has been advertised by the Selection Board and the process in that regard has to be completed with the appointment of duly selected candidate. 9. In view of the law so declared by the Division Bench, this Court has no hesitation to record that the transfer of respondent No. 7 subsequent to the vacancy being advertised is patently illegal and contrary to law. Therefore, it is held that the order cancelling the approval earlier granted to such transfer in exercise of powers under Regulation 55 to 62 of the regulations framed under the Intermediate Education Act is in accordance with law. 10. For the uncalled for litigation generated by the authorities, cost has been paid to the petitioners of both the writ petitions, in the Court today by the authorities of the State. The authorities are warned to be more careful in future and such mistake shall be repeated. 11. 10. For the uncalled for litigation generated by the authorities, cost has been paid to the petitioners of both the writ petitions, in the Court today by the authorities of the State. The authorities are warned to be more careful in future and such mistake shall be repeated. 11. Petitioner, Rajesh Kumar Pandey who is at serial No. 2 is at liberty to approach the Director of Education under Section 17 of the Commission’s Act for his appointment against the vacancy available in the institution on the basis of the panel notified. The Director of Education is expected to take appropriate action strictly in accordance with law after affording opportunity of hearing to the petitioners, Committee of Management and the person empanelled at serial No. 1. 12. So far as Dr. Ajay Pal Singh is concerned, since this Court has found that his transfer was illegal and that he has suffered because of wrongful information supplied by the Management, it would be appropriate that the Regional Joint Director of Education must ensure that Dr. Ajay Pal Singh is permitted to join in his parent institution and no hindrance is placed on his joining as Principal in C.P.K.U. Inter College, Musa Nagar, Kanpur Dehat. 13. Both the writ petitions are disposed of subject to the directions issued above. ————