Heard Mr. Som Kartik, learned counsel for petitioner, learned Standing Counsel for opposite party nos. 1 to 3, Mr. H.S Jain, learned counsel for opposite party no. 5 as well as Mr. S.P. Shukla, learned counsel for opposite party nos. 4 & 6 and perused the record.
The writ petition has been filed with the following prayers:
"(i) To issue a writ, order or direction in the nature of certiorari quashing the advertisement dated 29-06-2011 issued by the Board so far as it relates to filling up the post of Head Master of the School, by way of transfer, after summoning the record.
(ii) To issue a writ, order or direction in the nature of mandamus commanding the opposite party No. 1 to 5 to not to fill the post of Head Master of the school by way of transfer.
(iii) To issue such order or direction deemed just and proper in the facts and circumstances of the case.
(iv) To award the cost of writ petition."
However, in para 1 of the writ petition it is mentioned that the writ petition is directed against the notification dated 26.8.2011 whereby the opposite party no. 5 has cancelled the earlier advertisement to fill up the post of Principal of the College by direct recruitment through U.P. Secondary Education Services and Selection Board (hereinafter referred to as the 'Board') and the reason given is that the said post shall be filled up by transfer. It is further mentioned that the writ petition is also directed against the attempt of opposite party nos. 1 to 5 to appoint opposite party no. 6 on the post of Head Master in the institution by transfer.
The controversy involved in the writ petition basically relates as to whether the post of Head Master in the Railway Higher Secondary School, Charbagh, Lucknow (hereinafter referred to as the 'School') is to be filled up through the Board by direct recruitment or it can be filled up by way of transfer of opposite party no. 6.
Shorn of unnecessary details, the brief facts are that the school is a recognized school under Intermediate Education Act, 1921 (hereinafter referred to as the 'Act of 1921'). It is included in grant in aid scheme of the Uttar Pradesh Government and the salary of the teachers and other employees of the school is governed under the provisions of High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971 (hereinafter referred to as the 'Act of 1971'). The post of Head Master of the School fell vacant on substantive basis on 27.9.1990 owing to death of Sri Vijay Narain Pathak who was permanent Head Master. After his death, Sri Desh Raj Singh Rathore, LT Grade Teacher was promoted as Head Master on ad hoc basis, he too died in June, 1998. Thereafter, Sri Mata Prasad, the next senior most LT Grade Teacher was promoted to the post of Head Master on ad hoc basis from July, 1998. He retired on 30th June, 2002. Thereafter, the next senior most LT Grade Teacher, Smt. Pushp Lata Misra was promoted as Head Master on ad hoc basis. She too retired on 30.6.2006.
It was thereafter that the petitioner was promoted as Head Master on ad hoc basis w.e.f. 01.09.2006. The appointment of petitioner was approved by the District Inspector of Schools, Lucknow vide letter dated 30.12.2006.
A requisition to fill up the post in question was sent to the Board in the year 2000. One Sri Yogesh Chandra Tripathi was selected for the said post and was nominated for appointment, however, due to interim order granted by the High Court at Allahabad, the recommendation of the Board was kept on hold, until the matter was finally decided by the Supreme Court in the year 2009 in the case of Balbir Kaur, wherein the aforesaid selection was upheld. Thereupon the Board vide its letter dated 01.07.2009 had sent the name of Sri Yogesh Chandra Tripathi for appointment on substantive basis on the post in question. The District Inspector of Schools, Lucknow also issued the letter dated 10.7.2009 in this regard. However, Sri Yogesh Chandra Tripathi did not turn up to join in the school, even after a long time. Hence, the committee of Management-opposite party no. 4 vide letter dated 16.12.2009 informed the District Inspector of Schools-opposite party no. 3 that the person recommended by the Board did not turn up to join on the post of Head Master.
In the meantime, Sri Jai Jai Ram Upadhyay-opposite party no. 6 made an application seeking his transfer to the School. The opposite party no. 4 vide letter dated 29.5.2011 gave its consent for his transfer to the school. However, the Board on the basis of the fact that the selected candidate has not joined in the school, issued advertisement dated 29.6.2011 to fill up the post in question by selection.
In the meantime, application for transfer of opposite party no. 6 was processed and the institution where he was working gave its no objection on 27.6.2011 and recommended for his transfer to the school. The District Inspector of Schools, Hardoi also recommended for his transfer by letter dated 13.7.2011. The District Inspector of Schools, Lucknow as well recommended for transfer of opposite party no. 6 by his recommendation dated 05.08.2011. The Joint Director of Education, Lucknow also send the recommendation vide his letter dated 09.09.2011 and ultimately the matter was considered by the Additional Director of Education who vide letter dated 16.12.2011 recorded final approval of transfer of opposite party no. 6 to the school. Thereafter the opposite party no. 6 was relieved from Santosh Kumar Inter College, Hardoi on 26.12.2011 and said to have joined in the school on 27.12.2011 in the forenoon.
The advertisement dated 29.6.2011 inviting applications for the post in question in the school by direct recruitment through selection was cancelled by notification published by the Board on 26.8.2011, copy of advertisement dated 29.6.2011 and notification dated 26.8.2011 are annexed as Annexure Nos. 4 & 5, respectively.
Learned counsel for petitioner submitted that the petitioner being the senior most Assistant Teacher LT Grade was appointed as Head Master on ad hoc basis in the school under Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the 'Act of 1982'). His appointment has been approved by the District Inspector of Schools, Lucknow and he is continuously working and discharging all the duties of Head Master to the best of satisfaction of the concerning authorities.
Contention of learned counsel for petitioner is that the name of petitioner being senior most Assistant Teacher LT Grade of the school was forwarded to the Board in pursuance of advertisement dated 29.6.2011 and he has a right to be considered in the selection, which was to be held by the opposite party no. 5. His further contention is that once the advertisement dated 29.6.2011 was issued by the Board, the process of selection was started and as such in view of the law laid down by this Court in the case of Asha Singh Vs. State of U.P. and others; 2007 (3) UPLBEC 2497, which has been affirmed by Division Bench in the case of Smt. Amita Sinha Vs. State of U.P. and others; 2009 (1) ALJ 611, the post in question could not be filled by transfer.
Mr. H.S. Jain, learned counsel for opposite party no. 5 on the other hand submitted that the advertisement issued to fill up the post in question through selection by the Board was subsequently cancelled by notice dated 26.8.2011 and as such it cannot be said that once the process for selection was in progress, when the post in question has been filled up by way of transfer of opposite party no. 6.
It is further submitted that in fact by notice dated 28.6.2011, a list of approximately 100 institutions was published which includes the institutions including Railway Higher Secondary School, Charbagh, Lucknow where earlier advertisements to fill up posts through selection by the Board was issued but they were cancelled for various reasons, which is evident from perusal of Annexure No. 5 to the writ petition.
Mr. S.P. Shukla, learned counsel for opposite party nos. 4 & 6 submitted that the opposite party no. 6 is having qualification of P.hd. and he was selected as Principal for a Hardoi College by the Board and thus the opposite party no. 6 being a selectee of the Board itself, there was no impediment, much less wrong in allowing him to be transferred to the institution of the opposite party no. 4, particularly, when the Committees of Management of both the institutions agreed for such transfer and the District Inspector of Schools, Hardoi as well as District Inspector of Schools, Lucknow also gave their consent in writing and the Joint Director of Education, Lucknow Region also agreed. Not only this the Additional Director of Education within whose powers lies the approval of transfer has also ruled in favour of the opposite party no. 6 and has allowed the transfer.
I have considered the submissions made by the parties' counsel.
Section 16 of the Act of 1982 refers to appointment of teachers including Principals/Headmasters.
For ready reference, the amended Section 16 is reproduced below:
"16. Appointment to be made only on the recommendations of the Board-(1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder, but subject to the provisions of Sections 12, 18, 21-B, 21-C, 21-D, 21-E, 21-F, 33, 33-A, 33-B, 33-C, 33-D, 33-E and 33-F, every appointment of a teacher shall, on or after the date of commencement of the U.P. Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the Management only on the recommendation of the Board:
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921 shall mutatis mutandis apply.
Provide further that the appointment of a teacher by transfer from one Institution to another, may be made in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
Provided also that the dependent of a teacher or other employee of an Institution dying in harness who possess the qualifications prescribed under the Intermediate Education Act, 1921, may be appointed as teacher in Trained Graduate's Grade in accordance with the regulations made under Sub-section (4) of Section 9 of the said Act.
(2) Any appointment made in contravention of the provisions of Sub-section (1) shall be void."
Thus, under the amended Section 16, following six modes of appointment are contemplated:
(a) by way of direct recruitment through process of selection held by U.P. Secondary Education Services Selection Board, Allahabad,
(b) by way of promotion within 50% quota, in accordance with the Statutory Rules applicable,
(c) by way of transfer in accordance with the provisions of Regulations 55 to 62 of Chapter-III of Regulations framed under the U.P. Intermediate Education Act, 1921,
(d) by appointment of reserved pool Teacher under Sections 21-B to 21-D of the Act of 1982,
(e) by way of regularization of teachers appointed on ad-hoc basis under Sections 33-A to 33-D of the U.P. Secondary Education Services Selection Board Act, 1982,
(f) by way of compassionate appointment.
In the case in hand, the petitioner was promoted as Headmaster on ad hoc basis w.e.f. 01.09.2006 after the post in question got vacant due to retirement of one Smt. Pushp Lata Mishra. The requisition to fill up the post in question was sent to the Board in the year 2000 and one Sri Yogesh Chandra Tripathi was selected for the said post, however, Sri Yogesh Chandra Tripathi did not turn up to join the post in question.
It appears that, in the meantime, the opposite party no. 6 being a substantively appointed Principal in Santosh Kumar Inter College, Hardoi made an application seeking his transfer to the School where the petitioner was working. The opposite party no. 4 gave his consent by letter dated 29.5.2011 for transfer of opposite party no. 6 to the School. The institution where the opposite party no. 6 was working also gave its no objection on 27.6.2011 and recommended for his transfer. The District Inspector of Schools, Hardoi by letter dated 13.7.2011 also recommended for his transfer and the opposite party no. 3-District Inspector of Schools, Lucknow by letter dated 05.08.2011 agreed for his transfer. The Joint Director of Education, Lucknow in this regard sent its recommendation by letter dated 09.09.2011 and ultimately the matter was considered by the Additional Director of Education, who by letter dated 16.12.2011 recorded final approval for transfer of opposite party no. 6 to the School. It was thereafter that the opposite party no. 6 was relieved from Santosh Kumar Inter College, Hardoi and submitted his joining in the School where the petitioner is working on 27.12.2011.
It is to be noted that in the meantime the Board treating the post in question to be vacant issued advertisement dated 29.6.2011 inviting applications for selection on the post in question, however, the said advertisement was cancelled by notice published by the Board on 26.8.2011, perusal of which clearly indicates that out of total posts advertised earlier, 23 posts have been cancelled, 7 posts have been amended and a decision has been taken to include 94 new posts. The last date of applying was thereafter extended from 25.8.2011 to 26.9.2011. In the list of institutions where the selection has been cancelled, name of the School (Railway Higher Secondary School, Charbagh, Lucknow) is at SL. No. 19 and the reason for cancellation is given as 'Transfer'.
It is evident that the advertisement dated 29.6.2011 was modified by notification dated 26.8.2011 according to which the advertisement issued regarding filling of the post in question through selection stood cancelled, hence it cannot be said that the process for selection to fill up the post in question was started and it was in progress when the transfer of opposite party no. 6 was effected. It is very much clear that the advertisement dated 29.6.2011 so far as the post in question is concerned was cancelled by notification dated 26.8.2011.
It is not the case of the petitioner that the Board has no power to cancel the earlier advertisement dated 29.6.2011 or that the post in question cannot be filled up by way of transfer, even after cancellation of the advertisement. The pleadings are only to the effect that the action of opposite parties to fill up the post in question by way of transfer is arbitrary and illegal as the requisition for filling of the same was forwarded by the Committee of Management to the Board and in pursuance of the same, the post was advertised by the Board.
Now, in the light of aforesaid facts, it would be appropriate to examine the laws laid down by this Court in the case of Asha Singh (supra) and Smt. Amita Sinha (supra).
The question which cropped up for consideration in the case of Asha Singh (supra) was as to whether once the vacancy has been requisitioned for direct recruitment by Committee of Management for Intermediate College and in fact the vacancy has been advertised, is it still open to the Management of the same institution to fill up the vacancy by way of transfer, so as to negate the selection held by the Board against the same requisitioned vacancy. The Court came to the conclusion that once the vacancy has been advertised on a requisition made by the Committee of Management by the U.P. Secondary Education Services Selection Board, Alllahabad, the Committee of Management looses its discretion to fill up the vacancy by way of transfer inasmuch as the process of direct recruitment has been started. Once the advertisement is made by the U.P. Secondary Education Services Selection Board, Allahabad, the Committee of Management cannot resort to the mechanics of transfer for the purpose of filling up of the same vacancy, which had already been advertised.
Relevant paras 19, 20 and 21 are reproduced as under:
"19. This Court may record that once the vacancy is advertised, the Committee of Management must loose its discretion to fill the same vacancy by transfer inasmuch as the process of direct recruitment has been started. Once the advertisement is made by the U.P. Secondary Education Services Selection Board, Allahabad the Committee of management cannot resort to the mechanics of transfer for the purposes of filling up of the same vacancy, which had already been advertised.
20. It is necessary to restrict the discretion of the Management upto that stage, so as to safeguard the entire proceedings of selection, which had been initiated by the U.P. Secondary Education Services Selection Board, Allahabad. It is with reference to the number of vacancies which have been advertised that the number of candidates to be invited for interview and finally empanelled in their respective categories, has to be determined. Further the selected candidates have to exercise their options qua their empanelment under Rule 12 (4) of the U.P. Secondary Education Services Selection Board Rules, 1998 qua the vacancies which were subject matter of advertisement. Any attempt of the Management to fill the advertised vacancy by way of transfer, would result in creating a situation wherein the selected candidates may be deprived of their appointment despite having not been selected in order to merit, inasmuch as after they are empanelled for a particular institution, they will not be permitted to join because of vacancy had been filled by transfer in between. The entire proceedings initiated by the U.P. Secondary Education Services Selection Board, Allahabad will be brought to nought because such change of heart of the Management of the institution. The entire process of selection will have to be re-done by the U.P. Secondary Education Services Selection Board, Allahabad so that the selected candidate may exercise his option only in respect of available vacancy. This would neither be practical nor reasonable.
21. This Court, therefore, holds that once the vacancy has been advertised on a requisition made by the Committee of Management by the U.P. Secondary Education Services Selection Board, Allahabad, the Committee of Management looses its discretion to resort to mode of appointment by way of transfer and then it is only by direct recruitment on the recommendation of the U.P. Secondary Education Services Selection Board, Allahabad that any appointment against the vacancy advertised can be made."
In the case of Smt. Amita Sinha (supra), the judgment of Asha Singh (supra) was challenged in special appeal before the Division Bench, wherein the Division Bench while upholding the judgment of Asha Singh (supra) held as under:
"15. It was submitted by the appellant's counsel that under the 1998 Rules a right has been conferred upon two senior-most teachers of the college for being considered for appointment on the post of Principal and filling up the vacancy of the head of the institution by transfer necessarily defeats such right to consideration. In support of his contention the learned counsel for the appellant relied upon Prem Singh Manav Vs. District Inspector of Schools, Meerut and others, 1991(18) A.L.R. 279, Dinesh Bahadur Singh Vs. State of U.P. and others, 2004(4) AWC 2945 and Darshan Singh Vs. State of U.P. and others 1996(28) ALR 495. In Manav's case the question of filling up a vacancy from two competing modes of appointment, namely by transfer or by selection was not involved. The transferred candidate had joined the college several years before the dispute relating to appointment as Acting Principal arose and the question involved was about the seniority of the petitioner and the teacher transferred to the institution several years back. In Dinesh Bahadur Singh's case the petitioner who was the senior-most lecturer in the College was aggrieved by the notification of the vacancy on the post of Principal and contended that the claim of the senior-most Lecturer to be appointed as Principal was akin to the right of promotion. The Court negatived the contention that the right of the senior-most teacher to be considered for selection could be treated as a right to promotion. It was held that the post of Principal could be filled up by promotion. In para 3 of the Reports it has been observed that the post had not been advertised by the Board. In Darshan Singh's case the facts have not been set out in the judgment. The Court held that if the post has been advertised but could not be filled up for a long time, appointment by transfer could not be excluded on the ground of the senior-most teacher losing his right of consideration for selection. The question of harmonisation of the provisions to avoid conflict in the operation of Rules relating to appointment by transfer or by selection through Board was not considered in that case. The decisions cited do not hold anything, which may detract us from the view taken by us. We have already held that upto the stage of the computation of vacancies appointment by transfer can be made. In none of the cases cited was the transferred teacher posted to the institution after the advertisement of the vacancy by the Commission and his right of being appointed in preference to a selected candidate may have been upheld.
16. In the result, we find no merit in this appeal. It is accordingly, dismissed. "
This Court has come to the conclusion that since the advertisement dated 29.6.2011 was cancelled by subsequent notification dated 26.8.2011 issued by the Board as such it cannot be said that the process of selection was started or was in progress when the opposite party no. 6 was transferred on the post in question, therefore, the judgments aforesaid in the case of Asha Singh (supra) and Smt. Amita Sinha (supra) will be of no assistance to the petitioner as in the said case, the vacancies were advertised and applications were invited but the same had neither been withdrawn nor cancelled by the Board but in the present case, the vacancy for the post of Headmaster which was earlier invited was withdrawn and the advertisement made by the Board was cancelled as such there was no legal bottle neck in finalizing the transfer proposal of the opposite party no. 6. Moreover, the transfer of opposite party no. 6 was accorded final approval by the Additional Director of Education, who is said to be the competent authority. The opposite party no. 6 thereafter has submitted his joining on the post in question on 27.12.2011.
Under the aforesaid facts and circumstances, I am of the considered opinion that the writ petition being devoid of merit is liable to be dismissed, it is accordingly dismissed.
Interim order, if any, stands discharged.
[Ritu Raj Awasthi, J.] Order Date : 17th April, 2012 Santosh/-