Allahabad High Court
Krishna Kumar Singh vs State Of U.P. Thru. Prin. Secy. ... on 7 August, 2023
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:52092
Court No. - 7
Case :- WRIT - A No. - 5515 of 2023
Petitioner :- Krishna Kumar Singh
Respondent :- State Of U.P. Thru. Prin. Secy. Secondary Edu. Civil Sectt. Lko And 6 Others
Counsel for Petitioner :- Sudhakar Mishra,Haridwar Singh (H.D.Singh )
Counsel for Respondent :- C.S.C.,Amrendra Nath Tripathi,Raj Kr Singh Suryvanshi
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, learned State counsel appearing for respondent nos.1, 2, 3 & 5, Shri Amrendra Nath Tripathi, learned counsel appearing for respondent no.6 and Shri Raj Kumar Singh Suryvanshi, learned counsel appearing for respondent no.4 and perused the record.
2. With the consent of the parties, the writ petition is being finally decided.
3. The instant petition has been filed by the petitioner with the prayer of mandamus for commanding and directing the respondent no.3 to issue transfer letter in favour of the petitioner from SGV Inter College Nawabganj, Gonda to Bakshi Ka Talab Intermediate College, Lucknow, as per the merit of transfer list wherein the name of the petitioner finds place at Serial No.2, a copy of which is filed as annexure no.3 to the petition (wrongly mentioned as annexure no.1 in the prayer clause).
4. The contention of learned counsel for the petitioner is that the respondent no.3 i.e. Additional Director of Education (Secondary), U.P., Prayagraj issued a principals' transfer list in which the name of the petitioner finds place as Serial no.2. He has been shown as being transferred from Gonda to Lucknow in the colleges as already indicated above, yet no final decision has been taken in this matter till date.
5. On the other hand, Shri Amrendra Nath Tripathi, learned counsel appearing for respondent no.6 on the basis of the preliminary objections filed in the shape of an application for dismissal of writ petition argues that an Adhyachan has been sent by the Management on 18.12.2021 and the same has still not been cancelled till date rather it was forwarded by the District Inspector of Schools to the Selection Board.
6. Reliance has been placed on the judgment of the Division Bench of this Court passed in Special Appeal No.311 of 2016 in Re: Hari Pal Singh Vs. State of U.P. and Others decided on 02.08.2016 to argue that the Division Bench has placed reliance on a full Bench judgment of this Court in the case of Prashant Kumar Katiyar Vs. State of U.P. and Others 2013 (1) ESC 221 to hold that once a determination of vacancy is made and the notification process is either made or there is failure on the part of the Management to do so, then the District Inspector of Schools has to perform his duty as per provisions of the U.P. Secondary Education Selection Board Act, 1998 (hereinafter referred to as 'Act, 1998'). It is thus contended that as the respondent no.6 in the capacity of being senior most teacher is officiating as the Principal of the Institution since October, 2022 apart from the fact that he has filed Writ Petition No.17277(S/S) of 2021 in Re: Krishna Kumar Shukla Vs. State of U.P. and Others and this Court vide order dated 25.11.2021, a copy of which is annexure no.6 to the aforesaid preliminary objections, had directed the respondents that they should not take any further steps to fill in the post of Principal in the concerned institution by way of transfer, as such, the petitioner cannot be posted as Principal.
7. Placing reliance on the Division Bench's judgement of this Court passed in the case of Hari Pal Singh (supra) as well as the interim order dated passed by this Court dated 25.11.2021, the argument of Shri Tripathi is that as an Adhyachan has already been sent to the Selection Board and the said Adhyachan still stands good, consequently there cannot be any occasion for the post of Principal in the Institution in question being filled in by way of transfer as is sought to be done by the respondents while issuing the order, a copy of which annexure no.3 to the petition. Shri Tripathi also contends that vide order dated 10.07.2023, a copy of which is annexure no.13 to the preliminary objection, the District Inspector of Schools has already recommended the cancellation of the transfer of the petitioner and thus, the petitioner is not entitled for any relief and the writ petition is liable to be rejected.
8. Having heard the learned counsel for the parties and perused the record, what emerges is that despite an Adhyachan having already been issued on 18.12.2021, as per the statement given by Shri Suryvanshi, the said Adhyachan still stands good. The Division Bench of this Court in the case of Hari Pal Singh (supra) has held that keeping in view of the Act, 1998, the option of mode to recruit is available but transfer may not be available. Ever otherwise, the stay order is operating with respect to the respondent no.6 apart from the fact that the District Inspector of Schools, Lucknow has recommended the cancellation of the transfer of the petitioner vide recommendation dated 10.07.2023.
9. Be that as it may, the entire controversy is as to whether the transfer list is valid or not, whether it has been accepted or not, whether it still holds good or not and whether keeping in view of the judgment of Division Bench of this Court in the case of Hari Pal Singh (supra) as well as the stay order granted in the case of petitioner with respect to respondent no.6 dated 25.11.2021 passed in Writ Petition No.17277(S/S) of 2021, the prayer as has been made by the petitioner can be acceded to. All these aspects of the matter have not been considered rather are now required to be considered by the competent authority.
10. Keeping in view of the aforesaid discussions, the writ petition is disposed of requiring the respondent no.3 i.e.Additional Director of Education (Secondary), U.P., Prayagraj to look into the matter pertaining to the prayer of the petitioner for his transfer in accordance with the list, a copy of which is annexure no.3 to the petition.
11. Let a decision be taken by the respondent no.3 after providing due opportunity to all the concerned parties and an order be passed within a period of three weeks from the date of receipt of certified copy of this order.
12. It is made clear that it would be open to the respondent no.3 to consider all aspects of the matter being uninfluenced by the observations made by this Court.
Order Date :- 7.8.2023
S. Shivhare
