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2011 DIGILAW 1639 (ALL)

Santosh Kumar Singh v. State of U. P. and Others

2011-07-08

SABHAJEET YADAV, SHEO KUMAR SINGH

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Sabhajeet Yadav, J.;- Heard learned counsel for the petitioner and learned Standing Counsel. Challenge in this petition is to the decision taken by the State Government on 12th May,2011 by which the petitioner's claim for his transfer from a college in Moradabad to a college in Varanasi has been rejected. Submission is that two grounds are mentioned in the impugned order while rejecting the claim. and both are wholly misconceived and uncalled for. After hearing learned counsel for the petitioner and learned Standing Counsel, it is rightly pointed out from both the sides that calling for counter affidavit and keeping the matter pending then to take a decision will be a futile exercise and therefore, on the facts we propose to dispose of the present petition by giving liberty to any aggrieved person to file proper application, if so desired. Counsel for the petitioner submits that there is no objection from the college where the petitioner is teaching and that of the college where the the petitioner seeks transfer and thus there was no legal impediment in accepting the claim of the petitioner for transfer in the college at Varanasi (respondent no.7) In support of the submission that even if the post is advertised the rules provides for transfer if no selection has been made by the Commission. relevant Rule 4 ( 5) of U.P.Aided College Transfer of Teachers Rules, 2005 is hereby quoted:- "The Management of the college before giving its consent to any teacher, shall ensure that no enquiry or any proceeding is pending against the teacher concerned 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 but the selection on such post has not been made." In respect to the second aspect of the transfer policy that it will be framed and then the claim of the petitioner will be considered, suffice it to say that it may come into existence for the session April-May,2012 which may not have any retrospective application. On these facts, it is clear that even if post is advertised as on date but if it is not filled consideration of the petitioner's case for transfer cannot be denied. In view of the aforesaid on both counts the order of the State Government is found to be faulty.therefore, it needs to be quashed. The writ petition accordingly allowed. The order of the State Government dated 12.5.2011 is hereby quashed. The State Government is directed to attend the matter afresh as and when fresh representation along with certified copy of this order is received and to pass appropriate orders in accordance with law keeping in mind Rule 4(5) of the Rules quoted above, preferably within six weeks from the date of receipt of the move.