Praveen Kumar vs State Of U.P. And 5 Others
2023 Latest Caselaw 710 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on : 19.09.2022
 
Judgment Delivered on : 09.01.2023
 
Court No. - 18
 

 
Case :- WRIT - A No. - 6969 of 2020
 
Petitioner :- Praveen Kumar
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Ashok Khare
 
Counsel for Respondent :- C.S.C.,Bhola Nath Yadav,Naresh Chandra Tripahti,Santosh Kumar Yadav
 

 
Hon'ble Ashutosh Srivastava,J.

Order of the Impleadment Application

1. This is an application by Smt. Renu Gupta w/o late Ashok Gupta seeking impleadment as party respondent in the writ petition.

2. The applicant, admittedly is a complainant who instituted complaint against the alleged fraudulent transfer of the petitioner from Shanti Public Junior High School, Shahjahanpur to Sri Vaidya Ramnath Bal Bharti Junior High School, Sarsawa District Saharanpur.

3. The order dated 24.09.2020 passed by this Court while entertaining the writ petition reveals that the complainant had appeared through counsel in opposition to the writ petition and this Court turned down the request of the complainant to assist the Court being of the view that the complainant had not been impleaded as party to the writ petition and as such had no locus to appear and address the Court. Besides the matter in issue was essentially between the petitioner and the Respondent State and the Court is to decide whether the petitioner is entitled to be transferred from a recognized School or not in terms of Rules 18 of the 1978 Rules and that the applicant has no locus to intervene in the matter.

4. The applicant has now moved the impleadment application. The Court has gone through the content of the impleadment application and the affidavit filed in support thereof and finds that in the given set of facts the applicant has no locus-standi to intervene in the proceedings as she cannot be said to be person aggrieved.

5. There is no merit in the application and the same is rejected.

Order on Memo of Writ Petition.

6. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel for the petitioner, Sri Shishir Tiwari, learned Standing Counsel for the State Respondents, Sri Bhola Nath Yadav learned counsel, who has accepted notice on behalf of Respondent Nos.4 and 5, Sri N. C. Tripathi, learned counsel, who has appeared for Smt. Renu Gupta w/o late Ashok Gupta, who has sought her impleadment in the writ proceedings.

7. The instant writ petition has been filed assailing the order dated 30.06.2020 passed by the District Basic Education Officer, Saharanpur, whereby the approval accorded to the appointment of the petitioner in the year 2006 has been cancelled. A writ, order or direction of a suitable nature commanding the respondents not to interfere in the functioning of the petitioner as Assistant Teacher at Vaidya Ramnath Bal Bharti Junior High School, Sarsawa, Saharnpur, and to pay the petitioner his monthly salary regularly every month has also been claimed.

8. The facts giving rise to the controversy involved in the writ petition lies in a narrow compass. In the district Saharanpur, there are two recognized unaided Junior High Schools in the name of "Shanti Public Junior School Shahjahanpur, Sarsawa, Saharanpur and Sri Vaidya Ramnath Bal Bharti Junior High School, Sarsawa, Saharanpur. Shanti Public Junior School Shahjahanpur, Sarsawa, Saharanpur was granted recognition by Regional Assistant Director of Education (Basic) by order dated 11.08.2003 while Sri Vaidya Ramnath Bal Bharti Junior High School, Sarsawa Saharanpur was granted recognition on 01.07.1987.

9. The petitioner was appointed as Assistant Teacher at Shanti Public Junior School Shahjahanpur Sarsawa, Saharanpur and the appointment was duly approved by the District Basic Education Officer, Saharanpur vide order dated 23.09.2003. The approval order has been filed as Annexure-3 to the writ petition. The petitioner applied for his transfer from Shanti Public Junior School Shahjahanpur Sarsawa, Saharanpur to Sri Vaidya Ramnath Bal Bharti Junior High School, Sarsawa, Saharanpur, under Rule 18 of the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978. The transfer request was accorded consent by the Committee of Management of both the Institutions by resolution and the petitioner joined at Sri Vidya Ramnath Bal Bharti Junior High School, Sarsawa, Saharanpur. Meanwhile, the institution in question was brought under grant-in-aid w.e.f. 01.12.2006.

10. It is next contended by the learned Senior Counsel that the Regional Assistant Director of Education (Basic) under communication dated 24.06.2019, acting on a complaint required the District Basic Education Officer, Saharanpur, to cancel the approval granted to the transfer of the petitioner observing that the transfer was affected contrary to law. The District Basic Education Officer, Saharanpur, called for explanation from both the Committee of Managements of the Institutions. Both the Committee of Managements of the Institutions submitted their reports that the transfer was in order and suffered from no infirmity. However, the District Basic Education Officer by the impugned order dated 30.06.2020 has cancelled the approval granted to the transfer order dated 25.09.2006. Sri Khare vehemently submits that the impugned order has been passed under misconception of the Rule 18 of the 1978 Rules and Circular dated 01.12.2002, is totally ex-parte and has been passed after nearly 14 years of the order of transfer and as such is liable to be set aside and the writ petition is liable to be allowed as prayed.

11. Per Contra, learned Standing Counsel who has opposed the writ petition by filing counter affidavit submits that the impugned order cancelling the approval of the transfer is just and proper and no interference in the writ petition is warranted by this Court. It is further submitted that the District Basic Education Officer vide order dated 25.09.2006 transferred the petitioner from a temporary recognized institution i.e. Shanti Public Junior High School Shahjahanpur (Category-B) to Sri Vaidya Ramnath Bal Bharti Junior High School, Sarsawa Saharanpur (Category-A). The State Government by means of Government Order dated 2nd July 1990 has classified the aided Junior High Schools into Category 'A' and Category 'B' and the transfer being from temporary recognized Institution (Category-B) to permanently recognized Institution (Category-A) as such being not permitted and clearly in contravention of the Government Order dated 01.10.2002, the impugned order cancelling the approval is perfectly justified. The petitioner cannot be transferred to the Institution of different category. It is thus contended that the writ petition is devoid of merits and warrants outright rejection.

12. I have considered the rival contentions and perused the record. I find that the controversy in the writ petition rests on the interpretation of Rule 18 of the UP Recognized Basic Schools (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978, Government Order dated 02.07.1990 and Circular dated 01.10.2002.

13. A perusal of Rule 18(1) of the 1978 Rules provides that a permanent Headmaster or Assistant Teacher of a Recognized School can be transferred to another recognized school in which he may be lawfully employed on an application moved in that regard. Sub Rule 5 of Rule 18 provides that the approval to such a transfer from one recognized school to another recognized school shall be accorded by the District Basic Education Officer. The Court finds that the approval order dated 25.09.2006 cannot be faulted on this score.

14. Now coming to the Government Order dated 02.07.1990 and Circular dated 01.10.2002, the Court is of the opinion that both have to be read in tandem. The Rule 18 of the 1978 rules does not differentiate between category of recognition i.e. temporary or permanent. The requirement is that the Institution must be recognized. The classification of the Institution under Category 'A' and Category 'B' in the opinion of the Court is regarding the priority to bring such recognized Institutions under grant-in-aid. The Category 'A' institutions shall have precedence over Category 'B' Institutions, while being brought under grant-in-aid. In the case at hand, the consideration of this aspect is not relevant inasmuch as at the time of approval of the transfer both the Institutions were not under grant-in-aid. So far as the Circular dated 01.10.2002 is concerned, it provides that while considering the transfer of Teachers of the non-government recognized Institutions it must be ensured that the level of the Institutions are the same i.e. a teacher of an aided recognized Institution must be transferred to another aided recognized Institution and a Teacher of unaided recognized Institution must be transferred to another unaided recognized Institution and any transfer in contradiction to the above may not be approved. The Court finds that this aspect is also not violated in the case of the petitioner.

15. In view of the above, the Court finds that impugned order has been passed on a complete miscontrusion/misinterpretation of the Rule 18 of the 1978 Rules and the Government Order dated 02.07.1990 and Circular dated 01.10.2002 and as such cannot be sustained and is, accordingly, set aside. The writ petition is allowed. The respondents are directed not to interfere in its functioning of the petitioner as an Assistant Teacher at Vaidya Ramnath Bal Bharti Junior High School, Sarsawa Saharanpur. The petitioner shall be entitled to his regular salary month to month as and when the same falls due.

16. The writ petition is allowed. No order as to costs.

Order Date :- 09.01.2023

Ravi Prakash

(Ashutosh Srivastava, J.)