Court No. - 18
Case :- WRIT - A No. - 8658 of 2018
Petitioner :- Iftekhar Ahmad
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Hritudhwaj Pratap Sahi,Krishna Chandra Pandey,Samarath Singh,Sankalp Narain
Counsel for Respondent :- C.S.C.,Manu Singh,Sanjai Kumar Pandey
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri H.P. Sahi, learned counsel for the petitioner, learned Additional Chief Standing Counsel appearing for the State respondents and Shri Sanjai Kumar Pandey, Advocate as well as Shri Manu Singh, Advocate appearing for the fourth and fifth respondents.
Petitioner before this Court is assailing the validity of impugned transfer order dated 21.12.2017 passed by District Basic Education Officer, Sant Kabir Nagar whereby on the dictate of the District Magistrate, Sant Kabir Nagar, the aforesaid order has been passed. Further prayer has been made to command the respondents not to interfere with the peaceful functioning of the petitioner at his original place of posting i.e. Prathmik Vidyalaya Khajuri Vikas Khand Santha, District Sant Kabir Nagar.
Shri H.P. Sahi, learned counsel for the petitioner states that the entire action so taken by the District Basic Education Officer, Sant Kabir Nagar is based on the order passed by the District Magistrate, Sant Kabir Nagar on 05.10.2017. In support of his submission, he has placed reliance on the judgement passed by the Apex Court in Somesh Tiwari vs. Union of India and others 2009 (2) SCC 592 wherein the Hon'ble Apex Court has intervened in the matter on the ground of non-existent facts. Regarding jurisdiction of the District Magistrate concerned, he has placed reliance on the judgement passed in Deo Dutt Sharma vs. State of U.P. and others 2013 (4) ESC 1851. The said judgement has been passed relying upon the judgement passed in Smt. Pholpati Devi vs. Smt. Asha Jaiswal and others 2009 (2) ADJ 90 (DB) and Full Bench decision on this Court in the case of Heera lal vs. State of U.P. and others 2009 (6) ADJ 1 and it has been held that the District Magistrate is alien to the provisions of the U.P. Intermediate Education Act, 1921, the Regulations framed thereunder, and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. He has also placed reliance on the judgement passed by the Apex Court in Anirudhsinhji Karansinhji Jadaja vs. State of Gujarat 1995 (5) SCC 302 wherein the Apex Court has held that if the statutes confer a power on a authority, then he alone can exercise that power and no superior authority had any jurisdiction to issue direction to control the said power. In this backdrop, he submits that even the opening sentence of the order impugned would make it amply clear to this Court that the order has been passed on the dictate of District Magistrate concerned.
The aforesaid facts have not be disputed by the learned Standing Counsel.
This Court has the occasion to peruse the order impugned dated 21.12.2017 and finds that the same has been passed only on the dictate of the District Magistrate concerned and no other reason has been specified therein.
Once such is the factual situation, then this Court is of the considered opinion that the order impugned cannot sustain in the light of the order passed in Somesh Tiwari (supra) and Deo Dutt Sharma (supra) and the same is accordingly set aside. The Writ Petition is allowed. However dismissal of the present writ petition would not come in the way of Authorities concerned to proceed in accordance with law in case there is any serious charges against the petitioner.
Order Date :- 27.3.2018
A. Pandey