Satish Chandra vs State Of U.P. And 5 Others
2023 Latest Caselaw 26717 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:189077
 
Court No. - 35
 

 
Case :- WRIT - A No. - 12933 of 2023
 

 
Petitioner :- Satish Chandra
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Yogesh Kumar Saxena
 
Counsel for Respondent :- C.S.C.,Kushmondeya Shahi,Nitinjay Pandey,Siddharth Srivastava
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Yogesh Kumar Saxena, learned counsel for the writ petitioner, Sri Gaya Prasad Singh, learned Standing Counsel who appears for respondents No. 1, 3, 4 and 5, Sri Kushmondeya Shahi, learned counsel who appear for respondent No. 2, Commission, Sri Nitinjay Pandey, learned counsel who appears for respondent No. 6 and Sri Siddharth Srivastava, learned counsel who appears for respondent No. 7.

2. Sri Siddharth Srivastava, learned counsel who appears for respondent No. 7 has made a statement at bar that he has already filed his Vakalatnama on behalf of seventh respondent on 17.09.2023. Office is directed to trace and place it on record.

3. The case of the writ petitioner is that the seventh respondent, Sri Mahavir Inter College, Jauhari Nagar, Mainpuri is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 24 of 1971 and U.P. Act No. 5 of 1982 are applicable.

4. As per the writ petitioner the post of Principal/Head Master of the institution fell vacant on account of superannuation of the permanent Principal Sri Hari Prasad Yadav on 31.01.2021 and thereafter one Sri Devendra Pal Singh Chauhan was appointed as Officiating Principal who also stood superannuated on 31.03.2022 after attaining the age of superannuation and thereafter the writ petitioner claimed himself to be the Senior Most L.T. Grade Teacher was appointed as Ad hoc Principal/Headmaster of the institution in question on 31.03.2022.

5. In para 5 of the writ petitioner, it is asserted that the post of permanent Principal stood vacant on 31.01.2021, thus, the seventh respondent, Committee of Management of the institution in question notified the said vacancy to the Board through District Inspector of Schools on 05.04.2021.

6. In para 6, it is also asserted that though on 05.04.2021 the process was adopted offline but on 12.12.2021 the entire documents as per the requirements so needed under the statute was sent online. It is further the stand of the writ petitioner that at that relevant point of time the portal was not open so difficulty stood arisen for transmitting the entire documents online.

7. In para 7 of the writ petition, further assertion has been made that on 12.07.2021 an intra-departmental communication was issued from the office of the Director of Education (Madhyamik), Prayagraj addressed to the functionaries which were involved in the District/Region-wise seeking applications for transfer of Teachers/Principals/Headmasters in that regard. It is further the case of the writ petitioner that on 30.06.2023 the Additional Director of Secondary Education, Government of U.P., Prayagraj proceeded to issue two transfer orders one appended as Annexure 6 at page 44 transferring one Sri Raksha Pal Singh Headmaster from Maharaj Surajmal Inter College RKM, Agra to the seventh respondent institution, Sri Mahaveer Inter College Jauhari Nagar, Mainpuri in pursuance of the Government Order dated 19.06.2023 and second, Annexure 7 at page 46 transferring the sixth respondent, Pramod Kumar Yadav Headmaster from Panchanan Inter College Gaurela, Aligarh to the seventh respondent institution in pursuance of the Government Order dated 19.06.2022. According to the writ petitioner since on 30.06.2023 two transfer orders have been passed transferring two different persons to work in the institutions, seventh respondent that too against one post of Principal, thus, a modification/cancellation order was passed with respect to the transfers already done on 20.07.2023 by the Additional Director of Education (Madhyamik) U.P. whereby in para 1 of the same it was recited that one Dr. Raksha Pal Singh who had been sought to be transferred to the seventh respondent institution showed its inability to be transferred on the post of Principal and also tendered its no objection in case, somebody else is sought to be transferred, thus, the transfer orders were modified to the extent that now sixth respondent was being transferred to the seventh respondent institution.

8. Questioning the order dated 20.07.2023 passed by the third respondent, Additional Director of Secondary Education, Government of U.P., Prayagraj the writ petitioner has preferred the present writ petition with a further prayer that the respondents be injuncted from interfering with the peaceful functioning of the writ petitioner.

The writ petition was entertained by this Court on 10.08.2023 wherein the following orders were passed.-

"Supplementary affidavit filed today is taken on record.

Submission of Sri Saxena, learned counsel for the petitioner is that pursuant to the vacancy, which arose on account of superannuation of Sri Hari Prasad Yadav on 31.01.2021, one Sri Devendra Pal Singh Chauhan was appointed as Officiating Principal, who also superannuated on 31.03.2022 and as per the writ petitioner, the seventh respondent notified the vacancy to the Board through District Inspector of Schools on 05.04.2021 and as the requisition could not be sent through online by opening the portal so it was notified on 12.12.2021 online. It is the further case of the writ petitioner that on 30.06.2023, two orders were passed by the Addl Director of Secondary Education, Uttar Pradesh; the first order whereby one Sri Raksha Pal Singh was accorded placement in the seventh respondent-Institution and simultaneously by virtue of the second order, placement was given to the sixth respondent Sri Pramod Kumar Yadav in seventh respondent-Institution. It is further submitted that on 20.07.2023, again an order of Addl. Joint Director of Education (Madhyamik), whereby in line with the Government Order dated 19.06.2023 the placement of Sri Raksha Pal Singh has been cancelled and the sixth respondent has been accorded placement. While drawing attention towards the Government Order dated 19.06.2023 filed along with the supplementary affidavit at page-6, it is sought to be contended that in paragraph-1(1), the applications were to be submitted offline and not online. A statement has been made by the learned counsel for the petitioner, which has also been endorsed by learned counsel for the sixth respondent that the sixth respondent has been accorded posting subject to the result of the present petition.

Let a response be filed by the respective respondents.

Sri Shailendra Singh, learned Standing Counsel has accepted notice on behalf of Respondents- 1, 3, 4 and 5. Sri Nitinjay Pandey has accepted notice on behalf of Respondent no.6.

A statement has been made by learned counsel for the petitioner that the Committee of Management has been communicated about filling and pendency of the writ petition and according to him a vakalatnama would be filed by tomorrow itself.

All the respondents may file their response within 10 days, but not later than 22.08.2023. Rejoinder, if any, may be filed by 25.08.2023.

Put up as fresh on 28.08.2023."

9. Though at the time of entertaining the said writ petition Sri Pandey had appeared on behalf of sixth respondent, however, a statement was made by Sri Saxena that he would inform the Committee of Management of the institution in question. Probably for the said reason now the counsel for the Committee of Management, seventh respondent is before this Court. Post, entertaining the said writ petition a counter affidavit has been filed by learned Standing Counsel sworn by Associate District Inspector of Schools, Mainpuri dated 24.08.2023 to which a rejoinder has been filed by the learned counsel for the writ petitioner. A short counter affidavit has been filed by Sri Pandey, learned counsel who appears for the sixth respondent to which a reply has also been filed by the learned counsel for the writ petitioner. A supplementary affidavit has been filed on behalf of the writ petitioner which is available on record.

10. The learned counsel for the rival parties have made a statement at bar that the writ petition be decided on the basis of the pleadings available on record as they do not propose to file any further affidavits. Accordingly, with the consent of the learned counsel for the parties, the writ petition is being decided at the fresh stage.

11. Sri Yogesh Kumar Saxena, learned counsel for the writ petitioner while assailing the order dated 20.07.2023 passed by the Additional Director of Secondary Education, Government of U.P., Prayagraj has sought to contend that the entire exercise undertaken by the third respondent while transferring the sixth respondent to the seventh respondent institution is per se illegal and de hors the provisions contained under the Act, the Government Orders and the transfer policy so prevalent therein. In order to buttress the said submission, learned counsel for the writ petitioner submits that on 30.06.2023 there were two transfer orders were passed one with respect to Dr. Raksha Pal Singh and the second with respect to sixth respondent transferring him to the seventh respondent institution, however, the said exercise was undertaken post the sending of the requisition on 05.04.2021 offline and an attempt being said to be made by the institution in question for transmitting the same on 12.12.2021 by online mode, however, the same could not materialize particularly in the wake of the fact that the server could not be open and the process could not be given a logical end. He, thus, submits that once the vacancy stood notified then there was no scope or handle available to the respondents to have resorted to the mode of transfer as the same is illegal in view of the judgment of the Full Bench in the case of Prashant Kumar Katiyar Vs. State of U.P. 2011 (1) ESC 221 and Haripal Singh Vs. State of U.P. 2016 (8) ADJ 622.

12. Learned counsel for the writ petitioner has further invited the attention of the Court towards the policy in the shape of the Government Order dated 19.06.2023 appended at page 6 of the supplementary affidavit so as to further contend that in the wake of the difficulties being faced on account of non-opening of the portal and transmitting of the documents through online mode a Government Order was issued for sending the documents through offline . It is the further submission of the learned counsel for the writ petitioner while drawing attention towards paragraph 14 of the writ petition that the name of the sixth respondent did not find place in the list of the transferred incumbent and, thus, according to him the entire exercise is illegal.

13. Countering the submission of the learned counsel for the writ petitioner Sri Nitinjay Pandey, learned counsel who appears for the sixth respondent submits that there has been no illegality committed in transferring the sixth respondent to the seventh respondent institution as according to him first of all the reliance and the reference so placed upon by the learned counsel for the writ petitioner upon the alleged requisition dated 05.04.2021 is patently misconceived besides being preposterous particularly in view of the fact that the same does not confirm to the minimum requirements as specified in the statutes as well as the Government Orders he further submits that only giving the details of the post that too in one paper and also giving information/communication regarding retirement of one of the incumbents on the post of Principal does not satisfy the requirement. He further submits that even otherwise there happens to be a policy decision of the State Government dated 04.08.2023 and 12.07.2021 according to which the only requirement which forbids transfer is the fact that the vacancy has not been advertised, however, mere notification of the vacancies would not be a ground to forestall the process of transfer. He further submits that while drawing attention towards the policy dated 12.07.2021 in particular paragraphs 5, 9 and 13 has sought to argue that even otherwise before taking the process for transfer options are available to the person who seeks transfer and here options have been given by the sixth respondent and, thus, there is no illegality whatsoever can be attributed in this regard.

14. Sri Gaya Prasad Singh, learned Standing Counsel who appears for the official respondents on the strength of the averments made in the counter affidavit has sought to argue that even in fact there is no bar or embargo in not resorting to transfer process, in case, where only vacancy has been notified as the only hurdle/obstacle would be when the vacancy in question stands advertised. They seek to rely upon the policy decision of the State Government dated 12.07.2021 and 04.08.2021.

15. Sri Shahi, learned counsel who appears for the second respondent has adopted the arguments of Sri Pandey and Sri Singh, learned counsel who appears for the respondents, he further submits that he has nothing to add in that regard.

16. In rejoinder, Sri Saxena has further argued that the argument which is being sought to be raised by the learned counsel for the respondents has not been dealt with in the order impugned and rather to the contrary a specific averment has been made in para 14 of the writ petition that the name of the sixth respondent did not find place in the list of the transferred incumbents, however, the same has been evasively replied in the counter affidavit filed by the Associate District Inspector of Schools, Mainpuri in para 23. He further submits that the policy decision of the Government dated 12.07.2021 insofar as in para 13 is concerned which provides that the process of transfer cannot be forestalled at the stage when the requisition has been sent is preposterous particularly in view of the fact that clause 13 applied to the teachers and not to the Principal. He further submits that the same stood modified by virtue of the Government Order dated 13.08.2021 at page 53 wherein he seeks to rely upon sub-para 4 of para 2 of the said Government Order according to which no transfer can be effectuated in those circumstances when requisition has also been sent. He further submits that the crucial questions which are arising herein have not been adverted to by the Additional Director of Secondary Education, Government of U.P., Prayagraj.

17. At this stage, Sri Gaya Prasad, learned Standing Counsel who appears for respondents No. 1, 3, 4 and 5 and Sri Kushmondeya Shahi, learned counsel who appears for respondent No. 2, Sri Nitinjay Pandey, learned counsel who appears for respondent No. 6 and Sri Srivatava, learned counsel who appears for respondent No. 7 have made a statement at bar that issues which are being raised by the rival parties needs determination at the first instance by the Additional Director of Secondary Education, Government of U.P., Prayagraj. They submit that the matter be placed before the third respondent who shall decide the matter afresh looking into the each and every aspect of the matter dealing with the same.

18. To such a submission, Sri Yogesh Kumar Saxena, learned counsel for the writ petitioner has no objection and he gracefully accepts the same, however, he submits that the same should be time bound and each and every argument be addressed in that regard.

19. Normally, in ordinary circumstances this Court could have undertaken the task to decide the matter on merits, however, in view of the stand taken by the respondents that the order in question lacks the necessary exercise as well as deliberations on the said points, thus, this Court is abstaining from going into the merits of the matter leaving it open to the third respondent, Additional Director of Secondary Education, Government of U.P., Prayagraj to deal with the said aspects. The writ petition is, accordingly, deciding in the following terms:

(a) the writ petitioner as well as the sixth and the seventh respondent shall appear before the Additional Director of Secondary Education, Government of U.P., Prayagraj along with their versions on 12.10.2023;

(b) on that date the submission shall be exchanged between the writ petitioner the sixth and the seventh respondents;

(c) on the receipt of the same a date shall be fixed in the fourth week of October, 2023;

(d) hearing be done in the fourth week of October, 2023;

(e) orders be passed within 15 days therefrom;

20. While deciding the matter the third respondent, Additional Director of Secondary Education, Government of U.P., Prayagraj shall bear in mind the following fundamental and core issues:

(i) issue about legality of transfer of the sixth respondent made to seventh respondent-institution when there already existed a requisition as per the stand of the writ petitioner;

(ii) applicability of the Government Orders/policy decision dated 12.07.2021, 16.07.2021, 04.08.2021 13.08.2021 and 19.06.2023;

(iii) the issue as to whether during the said period when the entire exercise stood undertaken and the requisition was sent by the seventh respondent Committee of Management whether the requisition was to be sent offline or online;

(iv) the issue with regard to the allegation of the writ petitioner that the sixth respondent, Sri Pramod Kumar Yadav name did not find place in the transfer list;

(v) the import and the impact of the claim of the writ petitioner transmitting the documents offline on 05.04.2021 and attempting to transmit the same online on 12.12.2021;

(vi) the issue with regard to the claim of the sixth respondent, Pramod Kumar Yadav that he had filled the application form online giving preferences in that regard;

(vii) the import and the impact of the recital of the Government Order dated 19.06.2023 in the order dated 20.07.2023 regarding the intricacies with respect to offline or online;

21. The continuance of the sixth respondent, Sri Pramod Kumar Yadav as a Principal in the seventh respondent institution shall abide by the final order to be passed by the third respondent, Additional Director of Secondary Education, U.P., Prayagraj.

22. In case, the third respondent comes to the conclusion that the matter needs to be addressed by any other competent authority then the papers be transmitted to it with due intimation to the writ petitioner sixth and seventh respondent in advance in writing.

23. Needless to point out that passing of this order may not be construed to be an expression that this Court has adjudicated the matter on merits as the third respondent, Additional Director of Secondary Education, U.P., Prayagraj or any other competent authority who would be empowered to decide the matter shall pass an order with an independent application of mind without being influenced or obsessed by any of the observations made hereinabove. The entire exercise is to be completed within the time stipulated hereinabove.

Order Date :- 3.10.2023

Rajesh