Awadesh Singh vs State Of U.P. And 8 Others
2023 Latest Caselaw 34891 ALL

Allahabad High Court

Awadesh Singh vs State Of U.P. And 8 Others on 13 December, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:236110
 
Court No. - 35
 

 
Case :- WRIT - A No. - 14246 of 2023
 

 
Petitioner :- Awadesh Singh
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Siddharth Khare,Sudhir Srivastava,Sr. Advocate
 
Counsel for Respondent :- C.S.C,Krishna Kumar Chand,Shiv Ram Dubey,Uma Nath Pandey
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Sudhir Srivastava, learned counsel for the writ petitioner, Shri Shailendra Singh, learned Standing Counsel who appears for respondent Nos. 1, 2, 3, 5, 6, 7 and 8, Shri K.K. Chand, learned counsel for respondent No. 4 and Shri R.K. Ojha, learned Senior Counsel assisted by Shri Uma Nath Pandey, learned counsel for the respondent No. 9.

2. Since affidavits have been exchanged between the parties and the learned counsel for the rival parties do not propose to file any further response thus the writ petition is being decided at the fresh stage.

3. The case of the writ petitioner is that he was selected as a lecturer in Biology in Kulchhetra Singh Inter College, Mehrara, District Hathras and an appointment order issued on 16.08.2019 and he assumed the charge on 05.12.2019. In the wake of the provisions contained under Regulation 55 to 61 of the Chapter III of the U.P. Intermediate Education Act, 1921 proceedings were to be undertaken by the competent authorities for the purposes of transfer of the teachers from one institution to the other institution governed under the provisions of Intermediate Education Act, 1921. It is also the case of the writ petitioner that amendments made in the said regulation by virtue of a notification dated 28.06.2019. Further on 27.01.2020, a Government order was also issued followed by another notification dated 12.07.2021 of the Director of Education, Madhyamik, U.P. Prayagraj. The writ petitioner claims to have applied online within the time stipulated under the said guidelines which was 12.07.2021 to 15.07.2021 relatable to an on-line application for transfer from one institution to other. A copy of the application claim to have been submitted by the writ petitioner is appended as Annexure 5 of the paper-book, however on a specific query being made to Shri Ashok Khare, learned Senior Counsel as to what is the date on which the same was submitted online, he could not point out the date in that regard. It is also the case of the writ petitioner that he sought transfer from the institution Kulchhetra Singh Inter College, District, Hathras while obtaining NOC on 10.07.2021 to three institutions, first preference was the ninth respondent institution, Shaym Sunder Saraswati Inter College, Ayodhya. As per the writ petitioner with regard to the grievance relatable to the on-line application, the time frame modulated for submission of on-line application one Shri Rakesh Kumar along with others preferred Writ A No. 9194 of 2021 Rakesh Kumar and 7 others Vs. State of U.P. and 2 others, in which on 19.08.2021, an interim order was passed to the extent that the process may come on that no final decision would be taken thereafter the said orders was modified on 17.11.2022 providing that the petitioners who claimed to have not submitted their forms may not be transferred against their wishes, however any other person seeking transfer on consented basis may be transferred. Alleging non-processing of the claim of the writ petitioner for being transferred to the ninth respondent-institution, the writ petitioner herein along with others preferred Writ A No. 21522 of 2022 Awadesh Singh and three others Vs. State of U.P. and two others which came to be disposed of on 11.05.2023 requiring the competent authority to take decision. Thereafter according to the writ petitioner, he was transferred by the order dated 30.06.2023 passed by the fifth respondent, Additional Director of Education, Madhyamik, U.P. Prayagraj to the ninth respondent-institution. However, according to the writ petitioner in between certain communications were made relatable to the transfer of the writ petitioner to the ninth respondent institution at the end of Deputy Director of Education (Madhyamik), III, Education Directorate, Prayagraj addressed to the District Inspector of Schools, Ayodhya which resulted in passing of the order dated 10.08.2023 by the fifth respondent, Additional Director of Education, Madhyamik, U.P. Prayagraj cancelling the transfer of the writ petitioner.

4. Questioning the said order, the writ petitioner herein has filed the present writ petition.

5. The writ petition was entertained by this Court on 28.08.2023 and following orders were passed:

"Sri Ashok Khare, learned Senior Counsel for the petitioner has argued that consequent to the exercise undertaken as required under the statute the writ petitioner was transferred by virtue of the order dated 30.6.2023 from the post of Lecturer Biology General from K.S. Inter College, Mehrana, Hathras to S.S.B. Inter College, Ayodhya, however now order impugned has been passed on 10.8.2023 on the basis of the report submitted by the District Inspector of Schools, Ayodhya dated 26.7.2023 which even in fact proceeds upon the objection raised by the Committee of Management of the ninth respondent institution cancelling the order of transfer dated 30.6.2023.

According to Sri Khare, the solitary ground taken in the order cancelling the transfer is with regard to the fact that so far as the Lecturer Biology is concerned in the eighth respondent institution it comes under the OBC category and the writ petitioner is being sought to be transferred who is under the General category which is not permissible while drawing attention towards paragraph 35 of the writ petition it is being sought to be demonstrated that out of the total sanctioned strength of 16 of Lecturer, eight post earmarked for promotion quota and eight for direct recruitment and in the direct recruitment quota, already there are as many as three candidates under OBC category thus according to him that exceeds 27% as per the statute in question.

Sri Ojha, who appears for the ninth respondent institution, submits that the sixth respondent has not issued any no objection certificate in favour of the writ petitioner however Sri Khare submits that the said ground is not available in the order impugned cancelling the transfer order. Sri Khare further submits that the reservation is to be given subject wise.

Sri Jatav who appears for the official respondents shall seek instructions in the light of the aforesaid fact and also seek instructions in view of the annexure 24 at page 120 of the paper book.

Put up this case on 12th September, 2023 as fresh.

When the matter is next listed the name of Sri Uma Nath Pandey and Sri Shiv Ram Dubey be shown from the respondent side."

6. A counter affidavit has been filed on behalf of the respondent Nos. 2 to 5 sworn by District Inspector of Schools, Ayodhya dated 22.11.2023 followed by a short counter affidavit filed by the ninth respondent committee of management dated 09.10.2023 to which the writ petitioner has filed rejoinder affidavit.

7. Shri Ashok Khare, learned Senior Counsel appearing for the writ petitioner while assailing the order dated 10.08.2023 has sought to submit that the impugned order passed by the fifth respondent, Additional Director of Education, Madhyamik, U.P. Prayagraj cannot be sustained for a single moment particularly when there has been total non-application of mind. He submits that the impugned order has been passed on the basis of the inputs provided by the District Inspector of Schools, Ayodhya dated 26.07.2023 mentioning therein that the ninth respondent-institution had informed the District Inspector of Schools, Ayodhya that the post which is lying vacant is of Lecturer Biology which is under OBC category as where as the writ petitioner is being sought to be transferred who is lecturer Biology under general category. Learned Senior Counsel submits that there happens to be a communication of the Deputy Director (Madhyamik-III), Education Directorate, U.P. Prayagraj dated 09.08.2023 wherein it has been recited that there are total 16 posts sanctioned in lecturer cadre, 8 referable to direct recruitment and 8 for promotion category. According to the recital contained in the said communication, out of 8 posts of direct recruitment quota four pertains to general category, two OBC category, one SC category and one ST category as whereas in view of the telephonic conversation made by Shri Changu Prasad, clerk against the four posts of lecturer under general category, two are working, with respect to two posts of lecturer under OBC category, three are working likewise, post of SC category, two are working and none is working under ST category. Thus one candidate belonging to OBC category and one to SC category are in surplus. Learned counsel for the writ petitioner thus emphasis that once the position being so the writ petitioner ought to have been allowed to join the post in question particularly there was deficient posts under general category. It is also the submission of the learned Senior Counsel for the writ petitioner that as per the communication dated 09.08.2023 referred to above it is the own case of the respondents that the committee of management of the institution in question, ninth respondent had notified the said vacancies on 14.07.2021 off-line on 12.12.2021 online and prior to it the writ petitioner had proceeded to submit application seeking transfer to the ninth respondent-institution in view of the time schedule bracketed in the transfer policy dated 12.07.2021 which is 12.07.2021 and 15.07.2021 and also approached the Court of law and a mandamus was issued requiring the respondents to take a decision pursuant whereto he was transferred to ninth respondent-institution. He also submits that even if the case of the respondents is take into face value then in view of the umpteen number of judgment of the Hon'ble Apex Court and this Court that reservation is to be applied post wise/unit wise.

8. Shri R.K. Ojha, learned Senior Counsel who appears for the ninth respondent, committee of management submits that once it has come on record that on 14.07.2021 requisition has been sent through offline mode on 12.12.2021 by online mode which stood received by the Board/Commission then without taking the committee of management to confidence the transfer proceedings could not have been initiated. Submission is that regulation 58 of the Chapter III of the U.P. Intermediate Education Act, 1921 which was the prior to amendment, provided for taking of consent of committee of management whereat a teacher seeks to be transferred but in the wake of the notification dated 28.06.2019 though the said requirements stood wiped off, however, the same would not ipso facto dilute the claim of the committee of management particularly, when a conscious decision after verifying the fact as to whether vacancy has been notified or not is to be taken. He submits that entire proceedings have been conducted behind the back and acting upon the said requisitions, advertisement has also been published being Advertisement No. 02 of 2022 which has been appended as annexure SCA-4 at page 36 of the short counter affidavit filed by the committee of management and also there happens to be a communication under the Right to Information Act dated 07.08.2023 which recites that with respect to the ninth respondent institution one post of lecturer, Biology under OBC category and one post of lecturer Hindi in SC category has been advertised. He thus submits that the order impugned cannot be said to be suffering from any legal infirmity.

9. Shri Shailendra Singh, learned Standing Counsel who appears for the State official respondents on the strength of the counter affidavit filed by District Inspector of Schools, Ayodhya has sought to argue that might be certain recitals are contained in the communication dated 09.08.2023 of the Deputy Director (Madhyamik-III), Education Directorate, Prayagraj addressed to the District Inspector of Schools, Ayodhya giving breakup of the post relatable to promotion and direct recruitment and according to him the said recitals insofar as it pertains to OBC category, General category, SC category under direct recruitment quota are not correct. He has produced before this Court instructions dated 18.11.2023 clarifying the said decision and also averments made in the para 25 of the counter affidavit filed by the District Inspector of Schools, Ayodhya. He submits that once the requisition had been sent and the same stands proceeded then obviously the writ petitioner cannot resist the action of the committee of management in notifying the vacancy and getting the advertisement published as transfer is only permissible in those contingencies wherein either the vacancy has not been advertised and notification has not been sent.

10. I have heard the parties and peruse the record carefully.

11. The principal question which falls for consideration before this Court is as to what is the date on which the writ petitioner is stated to have moved an online application seeking transfer to the ninth respondent institution. Though in para 10 of the writ petition, the writ petitioner has asserted that the transfer request was sent on-line and a copy whereof has been appended as Annexure 5 at page 64 of the paper-book but the Court does not find the date on which the same has been filed. Shri Khare was repeatedly asked as to on what date the said on-line request was made to which he could not give the exact date. According to him due to non process of the same within the time stipulated therein the writ petitioner preferred Writ A No. 21522 of 2022 for a direction to consider the said request which eventually came to be considered on 30.06.2023 transferring the writ petitioner to ninth respondent-institution. The second aspect which this Court is to bear in mind is the date on which requisition is stated to have been sent by ninth respondent to the District Inspector of Schools to be forwarded to the Board. From the perusal of the communication dated 09.08.2023 it reveals that off-line application was submitted 14.07.2021 and on-line on 12.12.2021. Now a question arises whether the request made by the writ petitioner for transfer was prior to the sending of requisition or not. There is another facet of the matter which needs to be noticed is that in the order impugned dated 10.08.2023 of the fifth respondent, Additional Director of Education (Madhyamik), Prayagraj recites than the basis on which the transfer has been cancelled is the committee of management of the institution in question, ninth respondent wherein it has been informed to the District Inspector of Schools, Ayodhya that the post is of lecturer Biology is under OBC category. Here the Court finds from the perusal of the communication dated 09.08.2023 of the Deputy Director (Madhyamik-III), Education Directorate, Prayagraj addressed to District Inspector of Schools, Ayodhya, that against two sanctioned posts of OBC under direct recruitment quota, three are working, one is in excess. It has also not the case of the respondents that on the basis of the requisition sent by the ninth respondent, committee of management any selected candidate has joined in the institution in question pursuant to the advertisement no. 02 of 2022 and the counter affidavit filed by the District Inspector of Schools does not disclose the breakup of the post following under different categories, however, a copy of the instructions have been forwarded showing the breakup of the post. Unfortunately, the Court cannot read anything which is not pleaded in the counter affidavit.

12. At this stage, Shri Shailendra Singh, learned Standing Counsel appearing for the State-respondents submits that the matter needs to be given to a re-look in view of the said factual backdrop and the arguments advanced by the parties, thus, the matter be remitted back to the Director of Education (Madhyamik), U.P. Camp Office 18 Park Road, Lucknow for passing fresh order strictly in accordance with law.

13. To such a submission, Shri R.K. Ojha, learned Senior Counsel assisted by Shri Uma Nath Pandey has no objection, however their anxiety is that the matter be decided expeditiously after putting them to notice.

14. Shri Ashok Khare submits that fresh exercise is to be taken within the stipulated period.

15. Considering the submission of the rival parties as well as the stand taken by them, the Court is of the opinion that the order impugned in the writ petition has not been passed in the correct perspective coupled with the fact that the issues needs factual determination. Accordingly, the writ petition is being decided in the following manner:

a). The writ petitioner shall approach the third respondent, Director of Education (Madhyamik), U.P. Camp Office 18 Park Road, Lucknow by 22.12.2023.

b). On the receipt of the version/representation so submitted by the writ petitioner, the third respondent, Director of Education (Madhyamik), U.P. Camp Office 18 Park Road, Lucknow shall fix a date in the first week of January 2024 with due information to the writ petitioner as well as the committee of management of the institution in question.

c). On the date so fixed, the parties shall submit their version, a date of hearing be fixed in the second week of January 2024, an orders be passed by 19.01.2024.

d). The third respondent, Director of Education (Madhyamik), U.P. Camp Office 18 Park Road, Lucknow shall pass a reasoned and speaking order bearing in mind the following issues:

i). The entitlement of the claim of the writ petitioner for being transferred to the ninth respondent institution viz-a-viz the requisition claimed to be sent by the ninth respondent off-line 14.07.2021 and on-line 12.12.2021 and online request of writ petitioner for transfer.

ii). Import and the impact of the interim order passed in Writ A No. 9194 of 2021 Rakesh Kumar and others Vs. State of U.P. and others.

iii). Issue with respect to the total number of sanctioned posts under direct recruitment quota and their bifurcation with respect to General, Scheduled Castes, OBC, ST and filling up of the vacancy.

iv). Issue with respect to the applicability as per reservation policy as per law.

16. The order dated 10.08.2023 passed by the Additional Director of Education (Madhyamik), U.P., Prayagraj, fifth respondent shall not be given effect to till the passing of the fresh orders or 21.01.2024 whichever is earlier and the same shall be abide by the fresh orders to be passed pursuant to the Court orders.

17. With the aforesaid observations, the writ petition stands disposed off.

18. Instructions filed today is taken on record and marked as Appendix A.

Order Date :- 13.12.2023

A. Prajapati