Hari Pal Singh vs State Of U.P. Thru ...
2016 Latest Caselaw 4511 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 26							A.F.R.
 
Case :- SERVICE SINGLE No. - 16642 of 2016
 
Petitioner :- Hari Pal Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Secondary Edu.Govt.Of Up & Ors.
 
Counsel for Petitioner :- Prafulla Tiwari,Lalta Prasad Misra
 
Counsel for Respondent :- C.S.C.,Ashutosh Shahi,Brijesh Yadav 'Vijay',R.K.S. Suryavanshi,Ramesh Pandey
 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Dr. L.P. Misra, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Shri Ramesh Pandey, learned counsel representing the respondent no.11, who is on caveat.

The dispute engaging attention of this Court in the instant case relates to appointment on the post of Principal in Lucknow Montessori Inter College, Purana Qila, Lucknow-respondent no.10 (herein after referred to as 'LMIC'). The claim of respondent no.11 for appointment as Principal in the said institution on the basis of transfer is being resisted by the petitioner, who, at present, is officiating as Principal in the said institution.

LMIC is an Institution recognized by the Board of High School and Intermediate Education, Uttar Pradesh, Allahabad under the relevant provisions of Uttar Pradesh Intermediate Education Act, 1921 (herein after referred as 'the Act 1921 '). Similarly, Lala Ram Kumar Inter College, Patranga, Faizabad (hereinafter referred to as 'LRK Inter College') is also an Intermediate Institution recognized under the Act, 1921.

Both these Institutions are Government aided Institutions imparting education up to Intermediate level and students studying therein are subjected to take their examinations conducted by the Board of High School and Intermediate Examination, Allahabad.

Jurisdiction of this Court under Article 226 of the Constitution of India has been sought to be invoked by the petitioner assailing the validity of the letter/order dated 11.07.2016 of the Joint Director of Education, VI Region, Lucknow directing the District Inspector of Schools, Lucknow (herein after referred to as 'the DIOS') to take further action in the matter of transfer of respondent no.11, who is working as Principal of LRK Inter College, Patranga, Faizabad, to LMIC, Lucknow. The petitioner has also prayed that the resolution dated 18.06.2016 of the Committee of Management of LMIC, Lucknow resolving that No Objection Certificate be issued to respondent no.11 for his appointment as Principal in LMIC by way of transfer, be also quashed. No Objection Certificate issued to respondent no.11 by the Committee of Management of LMIC dated 21.06.2016 has also been challenged by the petitioner in this petition.

The basic premise on which Dr. L.P. Misra, learned counsel appearing for the petitioner, has proceeded to advance his arguments assailing the validity of the entire process initiated by the Committee of Management of LMIC, Lucknow to appoint respondent no.11 on the post of Principal in the Institution by way of transfer is that the said process of appointment is legally not available to the Management once the requisition for filling up the post in question by direct recruitment has been sent to the Uttar Pradesh Secondary Education Services Selection Board (herein after referred to as 'the Selection Board) under Section 10 of Uttar Pradesh Secondary Education [Services Selection Board] Act, 1982 (herein after referred to as 'the Board Act') read with Rule 11 of Uttar Pradesh Secondary Education Services Selection Board, Rules, 1998 (herein after referred to as 'the Rules, 1998').

Further contention of learned counsel for the petitioner is that in the instant case the process of transferring the respondent no.11 to LMIC, Lucknow as Principal from LRK Inter College, Patranga, Faizabad is in absolute contravention of the provisions contained in Regulations 55 to 61 of Chapter III of the Regulations framed under Section 16-G(2)(c) of Act, 1921.

Shri Ramesh Pandey, learned counsel representing the respondent no.11 has vehemently opposed the very maintainability of the writ petition by submitting that since no final decision in the matter of transfer of respondent no.11 has yet been taken by the authorities, as such the writ petition is premature. He addressed the Court on merit as well and has argued that in the facts and circumstances of the present case, the action of the Committee of Management of LMIC, Lucknow which is under challenge herein, does not suffer from any illegality or irregularity and hence, the writ petition deserves to be dismissed, even on merits.

Certain facts are to be noticed before dealing with the rival submissions made by the learned counsel appearing for the respective parties. Previous regular Principal of LMIC, Lucknow, Shri Amar Bahadur Singh was to attain the age of superannuation on 19.07.2012 as his date of birth is 20.07.1950. He was, however, allowed to continue till the end of academic session in which he attained the age of superannuation i.e. till 30.06.2015. Shri Amar Bahadur Singh being National/State teacher awardee was granted extension for a further period of three years, hence, he claimed his continuance till the end of academic session second time. However, the State Government passed an order dated 30.09.2015 retiring Shri Amar Bahadur Singh on 30.06.2013. The said order dated 30.09.2015 became subject matter of challenge before this Court in Writ Petition No.6246 (S/S) of 2015, filed by Shri Amar Bahadur Singh, which was dismissed on 03.11.2015 by Hon'ble Single Judge of this Court. Special Appeal bearing No.560 of 2015 was filed by Shri Amar Bahadur Singh challenging the order dated 03.11.2015 passed by Hon'ble Single Judge. The Division Bench while disposing of the said Special Appeal did not interfere with the judgement and order dated 03.11.2015, passed by Hon'ble Single Judge, however, it was provided that no recovery shall be made from Shri Amar Bahadur Singh pursuant to the judgement and order dated 03.11.2015 holding further therein that Shri Amar Bahadur Singh was not entitled to continue any further or receive salary, nor shall he receive any consequential benefits arising out of continuance beyond his entitlement. In compliance of the said order dated 30.11.2015, the services of Shri Amar Bahadur Singh as Principal of LMIC were discontinued and officiating charge of the post of the Principal was given to the petitioner, being the senior most Lecturer in the Institution, by the Committee of Management, vide order dated 01.12.2015. Pursuant thereof the petitioner submitted his joining on the post of Principal on 01.12.2015 itself and his signatures as Principal have also been attested by the DIOS, Lucknow. Since then, the petitioner has been officiating as Principal in LMIC, Lucknow.

It appears that on 03.04.2016 an application was preferred by respondent no.11 to the Management of LMIC, Lucknow seeking his transfer on the post of Principal from LRK Inter College, Faizabad as on account of retirement of the erstwhile Principal there had occurred a vacancy on the post of Principal in LMIC, Lucknow on 30.11.2015. It has been stated that the Committee of Management, LMIC, Lucknow in its resolution dated 06.05.2016 took a decision to fill up the post and constituted a Committee comprising of three members to consider the applications received in that regard from the Principals working in other Institutions. On 07.05.2016, the DIOS, Lucknow wrote a letter to the Management of LMIC, Lucknow stating therein that though the post of Principal had fallen vacant in the year 2015, however, requisition for filling up the post had not been made available to be forwarded to the Selection Board. Through the said letter, the Management of LMIC, Lucknow was directed to ensure that the requisition be sent for filling up the post of Principal and other posts by direct recruitment within three days, failing which, it was also observed by the DIOS, Lucknow in his letter that under the Rules, requisition shall be sent to the Selection Board by his office directly for which the Management of the Institution shall be responsible.

The petitioner on 23.05.2016 wrote a letter to the DIOS that the post of Principal had fallen vacant on substantive basis w.e.f. 31.07.2014 on which he has been officiating since 01.12.2015 under the orders of the Management and further that the petitioner has come to know that the Management intends to make appointment by way of transfer of some other candidate whereas he being the senior most teacher is entitled to be considered for promotion on ah-hoc basis to the post of Principal. The petitioner through the said letter dated 23.05.2016 prayed that the process initiated for appointment by way of transfer be cancelled and petitioner be granted promotion on ah-hoc basis. It appears that thereafter on receiving certain complaint on 23.05.2016, sent by the petitioner, the DIOS sent requisition for filling up the post of Principal by direct recruitment to the Selection Board by means of his letter dated 25.05.2016 under purported exercise of his jurisdiction vested in him under the Board Rules.

It is noticeable, at this juncture, that the DIOS in his earlier letter dated 07.05.2016 had required the Management of LMIC, Lucknow to sent the requisition to the Selection Board for appointment by way of direct recruitment not only on the post of Principal but also on the post of Lecturers/Teachers in L.T. Grade, however, the requisition by means of the letter dated 25.05.2016 was sent only for the post of Principal for selection by way of direct recruitment.

Some correspondence between the Management of LMIC and the DIOS, Lucknow appears to have taken place and the DIOS by means of his letter dated 08.06.2016, written to the Management of the Institution, has stated that since by his office requisition for appointment on the post of Principal by direct recruitment has been sent to the Selection Board on 25.05.2016, as such there is no requirement of filling up the said post by way of transfer. By the said letter dated 08.06.2016 the Management has also been required to submit proposal of ad-hoc promotion of the petitioner on the post of Principal. In the said letter, the DIOS has also stated that any process adopted for transfer against the post which has already been requisitioned to the Selection Board for being filled in by way of direct recruitment is unlawful. The DIOS, thus, expresses his disagreement with any such process.

The Management of LMIC, Lucknow proceeded ahead with the process relating to making appointment on the post of Principal in the Institution by way of transfer and accordingly, the impugned order/letter dated 11.07.2016 has been issued by the Joint Director of Education, VI Region, Lucknow directing the DIOS to take further action in the matter of transfer of respondent no.11 on the basis of documents received from the office of Joint Director of Education, Faizabad Region, Faizabad, vide his letter dated 06.07.2016. It is this order/direction dated 11.07.2016 which has been assailed by the petitioner in this petition.

On the basis of pleadings available on record and the arguments advanced in furtherance thereof by the learned counsel representing the parties, the following issues have emerged in this case for consideration and determination by this Court:-

(a) as to whether after notification of the vacancy on the post of Principal in a recognized Intermediate Institution under Section 10 of the Selection Board Act, 1982 is made either by the Management of the Institution or in failure whereof on the part of the Management, by the DIOS to the Selection Board, any process of making appointment on or filling up the said vacancy by way of transfer is legally permissible.

(b) as to whether the Management of an Intermediate Institution is vested with any discretion to decide and choose one of the modes enumerated in Section 16 of the Board Act, 1982 for making appointment against the vacancy on the post of Principal of an Institution.

(c) as to whether in the instant case, the provisions contained in Regulations 55 to 61 of Chapter-III of the Regulations framed under U.P. Intermediate Education Act, 1921 have been followed while processing the application made by the respondent no.11 seeking his transfer on the post of Principal in LMIC, Lucknow.

Taking up issue (c) first, this Court is of the considered opinion that since the process of transfer of respondent no.11 to LMIC, Lucknow as Principal is still not complete and in fact is in the mid way, as such any finding by the Court on the process adopted will be pre-judging the issue. In this view, no finding on this issue is warranted at this stage by the Court.

As regards issue (a), lengthy arguments have been advanced by learned counsel appearing for the respective parties, based on several provisions of U.P. Intermediate Education Act, 1921, Regulations framed thereunder, the Board Act, 1982 and the Board Rules, 1998.

Learned counsel for the petitioner has heavily relied upon a Full Bench decision of this Court in the case of Prashant Kumar Katiyar vs. State of U.P. And others, reported in [2013 (1) ESC 221].

On the other hand, learned counsel representing the respondent no.11 has relied upon the judgement of this Court in the case of Asha Singh vs. State of U.P. And others, reported in [(2007)3 UPLBEC 2497] which stands affirmed by a Division Bench judgement of this Court in the case of Smt. Amita Sinha vs. State of U.P. and others, reported in [(2008) (4) ESC 2799].

The Full Bench decision in the case of Prashant Kumar Katiyar (supra) considered the claim of appointment of dependent of a teacher, who had died while in service, vis-a-vis the claim of a candidate who was selected by the Selection Board but was not appointed on account of the vacancy having been filled up by the other mode of direct recruitment as contemplated in the third proviso appended to Section 16(1) of the Selection Board Act, 1982. The Full Bench has delivered its judgement after examining the correctness of two Division Bench judgements rendered by this Court in the case of Ved Prakash vs. Hari Krishna Singh and others, Special Appeal No.30 of 2011 decided on 19.01.2011 and that of the judgement in the case of U.P. Secondary Education Services Selection Board, Allahabad vs. State of U.P. and others, reported in [2011 (2) ADJ 892]. The Full Bench, after discussing various provisions of the Selection Board Act, 1982 and 1998 Rules, specially those of section 10, section 16, section 11 of the Board Act, 1982 and Rule 10, Rule 11 and Rule 12 of the Board Rules, 1998, has held that the entire exercise with regard to determination of vacancy has to be performed mandatorily by the Management and the DIOS, to enable the Selection Board to advertise the vacancy as notified in terms of the provisions contained in section 10 (2) of the Board Act read with Rule 12(1). Para 36 of the said judgement is quoted below:-

"36. It is this entire exercise with regard to determination that has to be performed mandatorily by the management and the District Inspector of Schools, to enable the Board to advertise the vacancy as notified which shall be done through wide publicity as provided for under Section 10(2) of the 1982 Act read with Rule 12(1) as quoted hereinabove."

The Full Bench crystallized the controversy which was considered by it in para 37 of the said judgement, which is extracted herein below:

"37. The controversy raised in this reference is vis-a-vis the impact of the action taken by the management and the District Inspector of Schools for determination of the vacancies and the consequential advertisement made by the Board and any attempt to alter the same by adopting the exceptional modes of appointment."

The Full Bench after discussing the entire matter has held in para 38 of the judgement that the Management or the District Inspector of Schools has not been empowered under the law to reverse the determination of vacancy and it can only add to it, subject to the contingency as contemplated under rule 11(3). The Court further observed that this does not take away the power to correct any arithmetical or calculative errors. Para 38 of the said judgement is relevant here which is quoted below:-

"38. In our opinion if the management has determined the vacancy or the District Inspector of Schools has done it as per Rule 11(4) then in that event the alteration of such determination and intimation is controlled only to the extent as provided by sub-rule (3) of Rule 11 which authorises the management and the Inspector to notify any fresh vacancy that may have occurred after such notification. The management or the District Inspector of Schools therefore has not been empowered under the rules to reverse the determination and it can only add to it, subject to the contingency as contemplated under sub-rule (3) of Rule 11. This however does not take away the power to correct any arithmetical or calculative errors that may have crept into such determination.

In the case of Prashant Kumar Katiyar (supra) the Full Bench of this Court further proceeded to observe that no power has been conferred for altering the vacancies already determined and intimated to the Board for the purpose of notification under the Act and the Rules. It has further been held that requisition to fill up the vacancies having been once sent to the Selection Board, becomes unalterable for the reason that the Selection Board proceeds with the advertisement by publishing the vacancy against which appointments are to be made inviting applications from the candidates giving their preference of the institutions to be indicated by them. This Court in this case has, thus, concluded that at this stage, to upset the procedure after advertisement by giving any further leverage would amount to disturbing the entire process of selection and if such a concession is given, the Management can indulge into motivated manipulations which are not uncommon and give rise to uncalled for controversies ending up in litigation. The relevant portion of the said judgement extracted from para 39 of the said judgement is as under:-

"At this stage, to upset the procedure after advertisement by giving any further leverage would be to disturb the entire process of selection and if such a concession is given, the Management can indulge into motivated manipulations which are not uncommon and give rise to uncalled for controversies ending up in litigation."

Discussing the case of transfer, Hon'ble Full Bench in para 43 in the aforesaid case of Prashant Kumar Katiyar (supra) has held that such an exercise, if any, has to be concluded prior to determination and intimation of the vacancy to the Board and further that the Management or a teacher cannot be permitted to make a request for allowing such transfer after determination of the vacancies and initiation of the process by the Board. While drawing the said conclusion, the reason given by this Court in the Full Bench judgement is that the authority of the Selection Board to proceed with the selection should not be disturbed by such intervening claims relating to transfer.

Para 43 of the said judgement where Full Bench of this Court discusses the issue relating to transfer is as under:-

"43. Taking up the case of transfer, which can be done unilaterally and even bilaterally by exchange of teachers, has to be done on resolutions passed by the two institutions that are to allow such appointment by way of transfer. If there is an application of any such teacher seeking appointment by way of transfer the same has to be forwarded to the competent authority as per the regulations meant for such appointment under Chapter-III of the U.P. Intermediate Education Act, 1921 read with proviso to Section 16 of the 1982 Act. This exercise, if any, therefore, has to be concluded prior to the determination and intimation of the vacancy to the Board as per the calendar fixed under the rules. The management or a teacher cannot be permitted to make a request for allowing such transfer after the determination of the vacancies and the initiation of the process by the Board. The choice to fill up a vacancy by way of transfer therefore has to be exercised reasonably and its determination has to be finalized prior to the sending of the intimation and not thereafter. This will prevent any confusion or future complication in the process of selection that has to be undertaken by the Board. The authority of the Board to proceed with the selection therefore should not be disturbed by such intervening claims relating to transfer."

As observed above, learned counsel for appearing for the petitioner has placed very heavy reliance on this judgement to impress upon the Court that the exercise relating to transfer or appointment by way of transfer has to be concluded prior to determination and intimation of vacancy to the Selection Board and since in this case the vacancy has already been notified by the District Inspector of Schools on 25.05.2016 to the Selection Board hence, ongoing process of transfer of respondent no.11 is completely without jurisdiction and is legally not permissible.

Based on the aforesaid judgement rendered by Hon'ble Full Bench of this Court in the case of Prashant Kumar Katiyar (supra), the arguments advanced by the learned counsel for the petitioner on the first sight appear to be impressive, however, on a deeper probe the said argument merits rejection for the reasons which are to follow.

The reasoning given by Hon'ble Full Bench in the case of Prashant Kumar Katiyar (supra) is that in case after notification of the vacancy to the Selection Board any process of making appointment by way of transfer is initiated, the same would disturb the process of selection and further that upsetting the procedure initiated by the Selection Board for filling up the vacancy by way of direct recruitment would give leverage to the Management which may indulge into motivated manipulations. What is noticeable, at this juncture, is that the Full Bench has observed that once the requisition is sent to the Selection Board, further process of advertising the vacancies and that of selection ensues. The concern expressed by Hon'ble Full Bench, in my considered opinion, is that the process of selection initiated by the Selection Board should not be upset or disturbed, which is based on certain legal principles. Process of selection starts on publication of advertisement inviting applications for filling up the vacancies and that is how Hon'ble Full Bench in para 39 has used the phrase "at this stage, to upset the procedure after advertisement". Since the selection process starts on making the advertisement, as such, in my opinion, there is no bar to fill up the vacancy by way of transfer once the vacancy has been notified to the Selection Board, but the said liberty is available to the Management of an Institution only before the process of selection commences, that is to say, before an advertisement is made by the Selection Board inviting applications to fill up the vacancy by direct recruitment.

In para 43 of the judgement in the case of Prashant Kumar Katiyar (supra), Hon'ble Full Bench of this Court has observed that the Management or a teacher cannot be permitted to make a request for transfer "after determination of the vacancies and initiation of the process by the Board". Initiation of selection process by the Board commences on advertising the vacancies and not merely on determination of vacancies and its notification to the Selection Board either by the Management of the Institution or by the DIOS. The Full Bench in para 43 of the judgement in the case of Prashant Kumar Katiyar (supra) has taken note of the legal proposition that the authority of the selection Board to proceed with the selection should not be disturbed by an intervening claim relating to transfer. What is of significance is to prevent any disturbance in the selection process initiated by the Selection Board which, in my considered opinion, commences with the publication of the advertisement inviting applications for filling up the vacancies.

The aforesaid view is also supported by the judgement of this Court in the case of Asha Singh (supra). This Court in the said case of Asha Singh after analysing the various provisions of law has held that the process by direct recruitment starts with the issuance of advertisement by the Selection Board and thus, it would be appropriate to restrict the exercise of discretion by the Management qua the mode of appointment (that is, by transfer or by direct recruitment) for filling up the vacancy up to that stage only. The said view expressed by this Court in Asha Singh (supra) is based on a judgement of Hon'ble Supreme Court in the case of N.T. Devin Kutti and others vs. Karnataka Public Service Commission and others, [(1990) 3 SCC 157], wherein it has been clarified that the process of selection starts with the advertisement.

Paragraphs 17, 18, 19 and 21 of the judgement in the case of Asha Singh are relevant to be quoted which are as under:-

17. The Hon'ble Supreme Court of India in the case of N.T. Devin Kutti and others vs. Karnataka Public Service Commission and others, [(1990) 3 SCC 157], has clarified that the process of selection starts with the advertisement, and the selection of candidates is to be made in accordance with the existing Rules and Government Orders applicable on that date. The rights of the candidates crystallises on the date of publication of the advertisement (Reference paragraph-11). The process of selection ends with the appointment.

18. In view of the aforesaid judgement of Hon'ble Supreme Court of India, it is held that the process of direct recruitment starts with the issuance of the advertisement, by the U.P. Secondary Education Services Selection Board, Allahabad. It would be logical to restrict the exercise of its discretion by the Committee of Management qua the mode of appointment (i.e., by transfer or by direct recruitment) for filling up the vacancy upto that stage only.

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.

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 than 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.

The issue relating to harmonizing the processes of appointment contemplated in the provisos appended to Section 16 to the Board Act, 1982 has been considered by a Division Bench of this Court in the case of Smt. Amita Sinha (supra). The judgement rendered by the Division Bench in the case of Smt. Amita Sinha (supra) was in special appeal filed against the judgement of Hon'ble Single Judge in the case of Asha Singh (supra). In para 10 of the judgement in the case of Smt. Amita Sinha (supra) the Division Bench has formed an opinion that the mode of appointment by transfer will apply only in case the process to fill up the vacancy has not been initiated by the Commission (now Board). It has further been held therein that the process begins with advertisement of vacancy and that to take a different view would be to create a clash in the operation of the two sets of provisions. The relevant portion occurring in para 10 of the judgement in the case of Smt. Amita Sinha (supra) is as under:-

"We are of the view that the only way to harmonize the two modes is to interpret the statute in a manner that the mode of appointment by transfer is confined to apply only in case where process to fill up the vacancy has not been initiated by the Commission. That process begins with the advertisement of vacancies. To take a different view would be to create a clash in the operation of the two sets of provisions."

Yet at another place i.e. in para 12 the Division Bench in the case of Smt. Amita Sinha (supra) has observed that an order of appointment by transfer cannot be made after the commission has issued the advertisement.

Submission of learned counsel for the petitioner that after the judgement of Full Bench of this Court in the case of Prashant Kumar Katiyar (supra), the judgements rendered in the case of Asha Singh (supra) and Smt. Amita Sinha (supra) are no more good law, also needs to be considered at this stage. From a closer scrutiny of the aforesaid judgement of the Full Bench in the case of Prashant Kumar Katiyar (supra) and also that of the judgements in the case of Asha Singh (supra) and Smt. Amita Sinha (supra) what emerges is that there is no conflict in the ratio laid down by the aforesaid judgements. What has been emphasized in all the three judgements is that the two processes of appointment, namely, through transfer and through direct recruitment, are to be harmonized in such a fashion that the process once initiated by the Board for selection for appointment by direct recruitment does not get hampered or aborted in the mid way. As already observed above, the process of selection begins with the publication of advertisement and hence I am unable to agree with the submission made by the learned counsel for the petitioner in this regard.

In the light of the aforesaid discussion, finding of the Court in respect of issue (a) as formulated above is that any process adopted for making appointment through transfer against a vacancy notified to the Board for being filled in by way of direct recruitment is legally permissible only before the advertisement is issued by the Selection Board pursuant to the requisition sent to it.

The next issue to be determined here is in relation to the discretion of the Management of an intermediate institution to decide and choose one of the modes/processes enumerated in Section 16 of the Board Act, 1982 for making appointment against a vacancy. In this regard, under the scheme of U.P. Intermediate Education Act the powers, duties and functions of the Committee of Management of a recognized aided institution becomes inevitable to be examined. The powers, functions and duties of the Committee of Management as defined in Regulation 13 of Chapter-I of the Regulations framed under Intermediate Education Act includes the powers of appointment. The provisions of Regulation 13 of Chapter-I of the Regulations framed under Intermediate Education Act is extracted below:-

13. Power, Duties and Functions of the Committee of Management.-Powers, duties and functions of the Committee of Management shall include the following:

(i) Appointment, confirmation, promotion, permission to cross efficiency bar suspension and punishment (including, removal and dismissal) of Headmaster, Principal, teacher, matron, clerk or librarian in accordance with the provisions of the Act and the regulations.

(ii) To decide appeals against entries made, in character rolls of employees by the Head/Manager of the institution.

(iii) Grant of all leave admissible to the employees of the institution except where such power vests in the Headmaster or Principal.

(iv) Control and management of all moneys, securities property and endowments of the institution, excluding the Boys Funds and taking of necessary measures for their safe custody, investment, repairs, maintenance and legal protection.

(v) Ensuring proper utilization of maintenance and development grants and reimbursements received from Government.

(vi) Receiving all incomes (excepting stipends, scholarships and Boys' Funds) subscriptions, donations, gifts, dividends, interest, grants, etc. for the institution and meeting financial obligations arising out of its duties and functions."

One of the basic functions vested in the Committee of Management of an institution is appointment and disciplinary action against the teaching and non-teaching staff including Principal. The Selection Board Act, 1982 has been enacted only for the purposes of providing an independent selection mechanism under which the Selection Board has been constituted which, on the basis of selection held by it, makes recommendations for appointment against teaching posts in the recognized institutions. Ultimately, the power to appoint vests in the Committee of Management. Ordinarily though the recommendation made by the Selection Board is binding on the Committee of Management but in appropriate cases such recommendation can be resisted by the Committee of Management for valid reasons. Right to discharge duties to a teacher or Principal does not accrue merely on his selection to a post but the said right accrues only on his appointment. Function of appointment of a teacher or Principal is a very vital function which, under the statutory scheme contained in Regulation 13 of Chapter-I of Regulations framed under the U.P. Intermediate Education Act, has been entrusted to the Committee of Management. In this view, if it is held that the Committee of Management does not have any discretion to decide and choose one of the processes enumerated in Section 16 of the Board, 1982 for appointment, the same would result in diluting the statutory functions and powers of the Committee of Management to make appointments.

This Court in the case of Asha Singh (supra) has held that it is the domain of the appointing authority to adopt any mode of appointment. This Court in the said case has clearly held that the Committee of Management has a discretion to fill up the vacancy by way of transfer, however, as observed above, such discretion is to be exercised within a particular time frame that is up to a particular stage.

Paras 14 and 15 of the judgement in the case of Asha Singh (supra) are relevant in this regard, which are quoted below:-

"14. It is no doubt true that it is with the domain of the Appointing Authority to adopt to any of the modes of appointment in respect of the vacancy in question in accordance with the statutory provisions applicable.

15. It may be recorded that against the vacancy, which is required to be filled by direct recruitment, the Committee of Management has a discretion to fill up the vacancy by way of transfer. Such is the language of Section-16. The issue, however, is as to whether such discretion is to be exercised by the Committee of Management within a particular time frame/ upto a particular stage, or at any point of time till actual appointment is made against the vacancy."

Thus, the Court concludes that the Committee of Management of a recognized institution possesses the discretion to decide and choose one of the modes/processes enumerated in Section 16 of the Board Act, 1982 for making appointment against the vacancy on the post of Principal of a recognized institution, however, the said discretion is available only before advertisement is published by the Selection Board for making appointment by way of direct recruitment against the vacancy notified to it.

In view of the discussions made and reasons given herein above, the writ petition fails and is resultantly dismissed.

However, while dismissing the writ petition, it is ordered that the authorities concerned shall, before passing the order for appointment by way of transfer, scrutinize the process adopted for the said purpose strictly in accordance with law, specially keeping in view the provisions contained in Regulations 55 to 61 of Chapter-I of the Regulations framed under Section 16-G (2)(c) of U.P. Intermediate Education Act, 1921

There will be no order as to costs.

Order Date :-26.07.2016

akhilesh/-