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2010 DIGILAW 1667 (ALL)

Ajay Pal Singh v. State of U. P. & Others

2010-05-19

ABHINAVA UPADHYA, R.K.AGRAWAL

body2010
Hon'ble Abhinava Upadhya, J.:- The present special appeal has been filed against the judgment and order dated 22.4.2010 passed by the learned Single Judge whereby the writ petition preferred by the present appellant has been dismissed. However, while dismissing the writ petition, the learned Single Judge had held that the appellant could not have been transferred on the post of Principal of the College after the post have been advertised and directed the Joint Director of Education to permit the appellant herein to join on the original post of Principal in C.P.K.U.Inter College, Musa Nagar, Kanpur Dehat, herein after referred to as the College. The writ petition filed by Sri Rakesh Kumar Yadav, who is respondent no.6 in the present appeal has been allowed and he was directed to approach the Director of Education for appointment against the vacancy available in Gangadeen Gauri Shankar Inter College, Kanpur Nagar, hereinafter referred to as the Institution, on the basis of the notified panel on which appropriate action strictly in accordance with law after affording opportunity of hearing to him, the Committee of Management and the candidate empanelled at serial no.1, be taken. 2. It appears that the post of Principal in the institution fell vacant and the Committee of Management duly intimated the U.P.Secondary Education Services Selection Board (hereinafter referred to as the Board) for filling up the vacancy through proper channel. While the post had been advertised in the year 2002 being Advertisement No. 1/2002 but before the selection could be made, with the consent of the management of both the institutions, the appellant vide order dated 22.07.2008 was transferred on the post of Principal in the institution. 3. It appears that the Board after taking interview of the eligible candidates was not declaring the result of the selection made for the post of Principal of the Institution whreupon Sri R.K.Yadav respondent no.6 herein approached this Court by means of Civil Misc.Writ Petition No.65084 of 2009 which was consigned to records vide order dated 8.12.2009 in view of the statement made by the Board's counsel that result shall be declared shortly within a week. The Board declared the result in which Sri R.K.Yadav, respondent no.6 herein has been placed at serial no.2. The Board declared the result in which Sri R.K.Yadav, respondent no.6 herein has been placed at serial no.2. When he was not permitted to join, he approached this Court by means of Writ Petition No. 14046 of 2010 seeking a writ of mandamus directing the District Inspector of Schools (in short the DIOS) to appoint him on the post of Principal in the Institution. In the meantime, the Additional Director of Education (Secondary) vide order dated 23.03.2010 cancelled the transfer order dated 22.07.2008. In compliance of the order dated 23.03.2010, the DIOS vide order dated 30.03.2010 directed the present appellant to join on the earlier post of Principal held by him in the College. The appellant had challenged the aforesaid two orders before this Court by means of Civil Misc.Writ Petition No. 18559 of 2010. 4. The learned Single Judge had decided both the writ petitions by the impugned judgment and order. The learned Single Judge, as already stated herein before has allowed the writ petition filed by Sri Rakesh Kumar Yadav whereas dismissed the petition filed by the present appellant. 5. The learned Single Judge relying upon a Division Bench judgment of this Court in the case of Amita Sinha Vs. State of U.P. & others reported in 2008(3) UPLBEC, 2448 held that after the post has been advertised, the vacancy cannot be filled by way of mutual transfer. 6. Learned counsel for the appellant could not point out any illegality in the said order except making the submission that the transfer of the present appellant was challenged by the officiating Principal which writ petition has been dismissed. In our considered opinion, the dismissal of the writ petition filed by the officiating Principal challenging the appellant's transfer would not come in the way of respondent no.6 in challenging the transfer, which is wholly without jurisdiction. 7. Learned counsel for the appellant could not persuade us to take a different view than what has been taken by the Division Bench of this Court in the case of Amita Sinha (supra) nor the correctness of the said decision has been questioned. 8. In view of the foregoing discussions, we are of the considered opinion that the order of the learned Single Judge does not suffer from any legal infirmity. The appeal fails and is dismissed.