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2024 DIGILAW 1891 (ALL)

Mayashankar v. State of Uttar Pradesh

2024-08-13

SUBHASH VIDYARTHI

body2024
JUDGMENT : SUBHASH VIDYARTHI J. 1. Heard Shri Kailash Singh Kushwaha, the learned counsel for the petitioner, Shri Pradeepta Kumar Shahi, the learned counsel for the State of Uttar Pradesh and Shri R.K. Ojha Senior Advocate assisted by Sri Rohit Singh Advocate, the learned counsel for the opposite party No. 5. 2. The petitioner Mayashankar has filed Writ (A) No. 5106 of 2023 challenging a proposal dated 30.12.2022 forwarded by the opposite party No. 5-Joint Director of Education, Varanasi Region, Varanasi to the opposite party No. 2-Additional Director of Education (Secondary), Uttar Pradesh Prayagraj, for transferring the opposite party No. 6 - Nityanand Mishra to the post of Principal, Bharat Sewak Samaj Inter College, Hathiyar, Varanasi and he has prayed for being permitted to continue as Ad-hoc Principal of the aforesaid College till joining of a candidate recommended by the Uttar Pradesh Secondary Education Services Selection Board. By way of amendment in the writ petition, the petitioner has prayed for quashing of an order dated 16.05.2023 passed by the Additional Director of Education (Secondary), Uttar Pradesh Prayagraj, rejecting the petitioner’s representation submitted against the aforesaid transfer order. 3. Writ (A) No. 10109 of 2024 has been filed by the petitioner challenging validity of an order dated 28.06.2024 passed by the Director of Education (Secondary), Uttar Pradesh transferring the opposite party No. 5-Nityanand Mishra (opposite party No. 6 in Writ (A) No. 5106 of 2023) from the post of Principal, Raj Kumar Higher Secondary School, Kubernath, Kushinagar, to the post of Principal, Bharat Sewak Samaj Inter College, Hathiyar, Varanasi in furtherance of a proposal made by the Joint Director of Education, Varanasi, which is under Challenge in Writ (A) No. 5106 of 2023. 4. As the controversy involved in both the writ petitions revolves around the same set of facts and involves similar grounds of challenge and defence, both the writ petitions are being decided by a common judgment. 5. Briefly stated, the facts pleaded in the writ petitions are that the petitioner-Maya Shanker is the senior most teacher working in Bharat Sewak Samaj Inter College, Hathiyar, Varanasi (herein referred to as ‘the College’). After retirement of Principal of the College Dr. Dinesh Chaubey, the Committee of Management of the College had resolved on 30.03.2018 to appoint the petitioner as Officiating Principal of the College. His signatures were attested by the District Inspector of Schools. After retirement of Principal of the College Dr. Dinesh Chaubey, the Committee of Management of the College had resolved on 30.03.2018 to appoint the petitioner as Officiating Principal of the College. His signatures were attested by the District Inspector of Schools. On 07.07.2018, the Committee of Management of the College had sent a requisition for the post of Principal of the College to the District Inspector of Schools. The District Inspector of Schools had approved the petitioner’s appointment as Officiating Principal of the College and had granted financial sanction by means of an order dated 19.09.2018. 6. On 07.06.2019, the Secretary, Uttar Pradesh Secondary Education Services Selection Board had issued a circular to all the District Inspector of Schools in the State informing that the procedure for receiving requisitions for vacant posts had been changed and with effect from 01.07.2019, requisitions would be accepted only through Online Requisition Portal and through no other mode. Guidelines for sending requisitions through Online Requisition Portal were attached to this circular. Thereafter, a requisition through Online Requisition Portal was also made for the post of Principal of the College on 11.12.2021. 7. On 30.12.2022, the Joint Director of Education forwarded an application submitted by Sri Nityanand Mishra, Principal, Raj Kumar Higher Secondary School, Kubersthan, Kushinagar to the post of Principal of the College in question stating that in furtherance of an application submitted by Sri Nityanand Mishra, the District Inspector of Schools has forwarded the documents wherein it was mentioned that a requisition for the post of Principal of the College has been sent to Uttar Pradesh Secondary Education Services Selection Board but the post has not been advertised. The transfer application of Sri Nityanand Mishra has been forwarded by Principal of both the Colleges, the District Inspector of Schools of both the Districts and the Joint Director of Education, VIIth Division, Gorakhpur. The Joint Director of Education stated in the letter dated 30.12.2022 that it is provided in the Government Order dated 27.01.2020 that although the transfers will be made online, in special circumstances, the Government will have power to make transfer through offline method. This proposal of the Joint Director of Education has been challenged by the petitioner in Writ (A) No. 5106 of 2023. 8. This proposal of the Joint Director of Education has been challenged by the petitioner in Writ (A) No. 5106 of 2023. 8. On 19.04.2023, this Court had passed an order in Writ (A) No. 5106 of 2023 stating that as the matter was pending before the Additional Director of Education, it would be appropriate that he should hear the petitioner also in the matter of request of transfer of the opposite party No. 6. 9. In compliance of the order dated 19.04.2023 passed in Writ (A) No. 5106 of 2023, the Additional Director of Education (Secondary) passed an order dated 16.5.2023 rejecting the petitioner’s representation against transfer of Nityanand Mishra, which order has been challenged by making amendment in Writ (A) No. 5106 of 2023 and on 22.05.2023, this Court had passed an interim order directing that the post of Principal of the College shall not be filled by transfer and it can only be filled by regular selection by the Board. 10. The opposite party No. 6 had filed Special Appeal No. 462 of 2023 against the interim order dated 22.05.2023, which was dismissed by means of an order dated 06.07.2023. 11. On 12.06.2024, a Government Order was issued regarding transfer of Principals and Teachers of non Government aided secondary schools and it inter alia provided that while making offline transfers, it will be ascertained that the transfer order does not violate any order passed by this Court. On 14.06.2024, the Director of Education (Secondary) issued a circular directing all the Regional Joint Directors of Education (Secondary) and all District Inspector of Schools to comply with the aforesaid Government Order dated 12.06.2024. 12. On 28.06.2024, the Deputy Director of Education (Secondary-III) passed an order transferring the opposite party No. 6 from Raj Kumar Higher Secondary School, Kubernath to the College in question at Varanasi, which order has been challenged in Writ (A) No. 10109 of 2024 mainly on the ground that this transfer order was passed during continuance of the interim order dated 22.05.2023 passed by this Court in Writ (A) No. 5106 of 2023 as also in violation of the conditions of the Government Order dated 12.06.2024 and that it would result in dislodging the petitioner, without a regularly selected candidate having been appointed on the post in question. 13. 13. On 16.07.2024., an order was passed in Writ (A) No. 10109 of 2024 wherein it was stated that: “5. It is clearly stated in last but one paragraph of the aforesaid order that the post of Principal of the institution where the petitioner is working as Officiating Principal shall not be filled-up by any transfer except by mode of regular selection by the Board. 6. It is argued by learned counsel for the petitioner that the transfer of the opposite party no. 5 from Kushinagar to the institution where the petitioner is working as Officiating Principal is per se illegal and is in complete violation of the order passed by this Court in Writ (A) No. 5106 of 2023, which is quoted above. 7. In this view of the matter, the opposite party no. 2-Addtional Director of Education (Secondary), Uttar Pradesh Prayagraj, is directed to file his personal affidavit explaining that why the contempt proceeding shall not be initiated against him. 8. The aforesaid affidavit be filed within a period of three days from today.” 14. After passing of the aforesaid order, the Additional Director of Education (Secondary) passed an order on the same date i.e. 16.07.2024 staying operation of the order dated 28.06.2024 whereby the opposite party No. 6 had been transferred to the post of Principal of the College and making it subject to final outcome of Writ (A) No. 5106 of 2023 and this order dated 16.07.2024 was brought on record along with a personal affidavit of Additional Director of Education (Secondary) Uttar Pradesh Prayagraj filed before this Court. 15. A counter affidavit has been filed on behalf of Sri. Nityanand Mishra-opposite party No. 6 in Writ (A) No. 5106 of 2023, by his son Akhilesh Kumar Mishra, inter alia stating that Nityanand Mishra had met with a major road accident on 31.05.2022, in which he sustained grievous injuries in his spine, due to which he became unable to stand on his legs and to move on his own, as he has lost sensation in both his lower limbs. He requires wheelchair assistance for his daily routines and the Doctors have advised that his treatment/rehabilitation may stretch for a considerably long period, during which he would require proper care and treatment with the help of his family members. Wife of Sri. Nityanand Mishra is a permanent Assistant Teacher (L.T. Grade) posted at Varanasi. Sri. He requires wheelchair assistance for his daily routines and the Doctors have advised that his treatment/rehabilitation may stretch for a considerably long period, during which he would require proper care and treatment with the help of his family members. Wife of Sri. Nityanand Mishra is a permanent Assistant Teacher (L.T. Grade) posted at Varanasi. Sri. Nityanand Mishra is facing extreme difficulty in living alone at Kushinagar, away from his family members who reside at Varanasi, because of his aforesaid physical condition. The State as well as Sri Nityanand Mishra have stated in their counter affidavits that the Government Order dated 27.01.2020 issued regarding transfers of Principal and Teachers of Government aided Institutions inter alia provides that the post on which a Teacher is seeking transfer, should not have been Advertised by Uttar Pradesh Secondary Education Services Selection Board or Uttar Pradesh Education Service Selection Commission although a requisition regarding the post might have been sent. 16. In the rejoinder affidavit filed by the petitioner, the aforesaid averments made regarding the physical condition of Sri. Nityanand Mishra due to the injuries suffered by in an accident have not been disputed. 17. The Additional Director of Education (Secondary), Uttar Pradesh Prayagraj has taken into consideration the pleas taken by all the parties concerned in the impugned order dated 16.05.2023 and he has noted that an offline requisition for the post of Principal of the College was sent on 19.07.2019 and again an online requisition was sent on 11.12.2021. The Selection Board had published a list of 141 posts requisitioned in the year 2021-22, which requisitions were cancelled for various reasons. Bharat Sewak Samaj Inter College, Varanasi is mentioned at serial No. 139 of the list and the reason for cancellation of the requisition is mentioned that the post in question had already been requisitioned in the year 2019-20. 18. On 11.01.2020, Secretary, Uttar Pradesh Secondary Education Services Selection Board had sent a letter addressed to all the District Inspector of Schools stating that as a long period of time had elapsed since online requisitions were received during the year 2019-20 and 2021-22. Therefore, to avoid any kind of disputes, it was decided to verify the online requisitions, for which purpose the requisition portal was being opened for the period 11.01.2023 to 16.01.2023. Therefore, to avoid any kind of disputes, it was decided to verify the online requisitions, for which purpose the requisition portal was being opened for the period 11.01.2023 to 16.01.2023. One of the points to be verified was whether the post has been filled by way of promotion or was proposed to be filled by transfer. Requisition for the post in question was cancelled on this ground. The Regional Joint Director of Education informed through his letter dated 22.02.2023 that the requisition has not been verified as it was proposed to be filled by way of promotion. 19. The Additional Director of Education rejected the representation by stating that the petitioner was given charge of Officiating Principal till a regularly selected candidate joins the post. In the cases of Prashant Kumar Katiyar and Hari Pal Singh, this Court had held that posts which have been requisitioned, cannot be filled by any other manner but requisition of the post in question has already been cancelled and, therefore, the facts of case are different from the facts of the cases of Prashant Kumar Katiyar and Hari Pal Singh. 20. In Prashant Kumar Katiyar Vs. State of Uttar Pradesh and Others, 2013 (1) ADJ 523 , a Full Bench of this Court has held that: “The claim of a dependant as per the third proviso to Section 16 of the 1982 Act read with Regulations 101 to 107 of Chapter III of the Regulations framed under the 1921 Act can be considered for compassionate appointment on the post of an Assistant Teacher (TGT grade) against a vacancy that has been notified for being filled up by direct recruitment under the 1982 Act read with the 1998 Rules framed thereunder upto the stage of the last date for receipt of application forms under the advertisement, but not thereafter till the selections are completed by the Board followed by appointments under the provisions aforesaid.” 21. Following the decision of the Full Bench in Prashant Kumar Katiyar (Supra), a Division Bench of this Court held in Hari Pal Singh vs. State of Uttar Pradesh (2016) 6 All LJ 203, that: “The ratio of the Full Bench in the case of Prashant Kumar Katiyar (supra) in paragraphs 38, 39, 40 and 41 has clearly concluded that the power of the Management or the District Inspector of Schools or even the authority which is to give effect to any transfer cannot proceed to adopt any other mode of recruitment after the steps taken for determination and notification as per Rule 11 of the 1998 Rules. It has also been held that the alteration of any such determination is not permissible and cannot be reversed. This has been reiterated in paragraph - 39 of the decision. Not only this in paragraph-40, the Full Bench also obliges the Committee and the District Inspector of Schools to fulfill their obligations as per Rule 11 for determination and intimation of vacancies. The ratio therefore of the Full Bench read with the aforesaid Rules is clearly to the effect that the authorities, who are obliged to fill up the vacancies occurring in the year of recruitment, have to mandatorily perform their function of determining and notifying the vacancy. The failure by the Management or the District Inspector of Schools to act as per Rule 11 of the 1998 Rules would therefore not generate a right in favour of any person to seek transfer or even in the Committee of Management to defeat the very purpose of Rule 11 of determining or intimating the vacancies to the Selection Board for direct recruitment. The Committee of Management no doubt has the right to select the mode of recruitment when it has to be filled up directly in the event it has an option from a candidate seeking transfer. However, this conscious decision of the Committee of Management to adopt a particular mode has to be taken within the time frame as provided under Rule 11 of the 1998 Rules. If the Committee of Management is allowed to violate the time schedule, then it would be allowing the Committee of Management to have a free play to choose to determine it's mode of recruitment at any time which is not the purpose of the Rules. If the Committee of Management is allowed to violate the time schedule, then it would be allowing the Committee of Management to have a free play to choose to determine it's mode of recruitment at any time which is not the purpose of the Rules. For that matter, under Sub-Rule (4) of Rule 11, the District Inspector of Schools is also obliged to take a decision as per the specifications of the time schedule provided in Rule 11 itself for the Committee as well as for the District Inspector of Schools. This compliance has to be adhered to keeping in view the year of recruitment and also the eligibility of the candidate including his qualification as on the first day of the year of recruitment which would be the 1st of July of the year in question. However, any failure on their part would not extend the right of the Management to any stage beyond that for adopting the mode of appointment by way of transfer.” 22. The learned counsel for the petitioner has submitted that the proposal for transfer of the opposite party No. 6 as well as his transfer has been made after the post in question has been requisitioned and, therefore, the transfer order is illegal and is liable to be quashed. 23. Per contra, the learned counsel for the opposite parties have submitted that subsequent to passing of the judgments in Prashant Kumar Katiyar and Hari Pal Singh, the Uttar Pradesh Education Services Selection Commission Act, 2023 (Uttar Pradesh Act No. 15 of 2023) has been enacted with effect from 17.10.2023. Section 31 (1) has repealed the Uttar Pradesh Higher Education Services Commission Act, 1980, the Uttar Pradesh Secondary Education Service Selection Board Act, 1982 and the Uttar Pradesh Education Service Selection Commission Act, 2019. 24. With the repeal of the Uttar Pradesh Secondary Education Service Selection Board Act, 1982, the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998, which were framed under the aforesaid Act, also stood repealed. 25. Uttar Pradesh Education Services Selection Commission Rules, 2023 have been framed under the Uttar Pradesh Education Services Selection Commission Act, 2023. 26. 24. With the repeal of the Uttar Pradesh Secondary Education Service Selection Board Act, 1982, the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998, which were framed under the aforesaid Act, also stood repealed. 25. Uttar Pradesh Education Services Selection Commission Rules, 2023 have been framed under the Uttar Pradesh Education Services Selection Commission Act, 2023. 26. Chapter V of the Uttar Pradesh Education Services Selection Commission Rules, 2023 deals with the procedure of recruitment and Rule 28 falling in Chapter V of the aforesaid Rules provides that the appointing authority or the management or the authorized officer shall ascertain the number of vacancies as per the provisions contained in Section 10 (1) of the Act and shall notify the vacancies through the Director (Higher Education) or Director (Secondary Education) or Director (Basic Education) or Director (Training and Employment) or Director General, Atal Awasiya Vidyalaya, as the case may be, to the Commission in the manner prescribed by the Rules. 27. Rule 28 (5) of the Uttar Pradesh Education Services Selection Commission Rules, 2023 provides that the vacancies which have been notified, shall not be filled by a solitary transfer; provided that if a solitary transfer is necessary in special circumstances, as far as possible, it shall be brought to the notice of the Commission, expeditiously and the post falling vacant due to the solitary transfer shall be included in the notified posts and this vacancy will also be covered by the same selection process. After commencement of the selection process, no solitary transfer will be made under any circumstance. 28. As the Rules in force at the time when the case of Hari Pal Singh (Supra) was decided do not exist any more, the ratio laid down in the aforesaid case would not apply to the present case, where the Rules in force are different from the Rules those were in force at the time of decision of Hari Pal Singh’s case. 29. In view of the foregoing discussion, I am of the considered view that under the Uttar Pradesh Education Services Selection Commission Rules, 2023, there is no absolute prohibition against filling up a vacant post of Principal by transfer after a requisition for filling up the vacancy has been sent, provided the selection process has not commenced. Therefore, there is no illegality in transfer of Sri. Therefore, there is no illegality in transfer of Sri. Nityanand Mishra from the post of Principal, Raj Kumar Higher Secondary School, Kubernath, Kushinagar, to the post of Principal, Bharat Sewak Samaj Inter College, Hathiyar, Varanasi. 30. Both the Writ Petitions lack merit and the same are dismissed. It is needless to say that as a result of dismissal of the Writ Petitions, the interim orders passed in the Writ Petitions stand discharged.