Dr. Vishal Malik vs State Of U.P. And 5 Others
2023 Latest Caselaw 27395 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:192464
 
Court No. - 35
 

 
Case :- WRIT - A No. - 10743 of 2023
 

 
Petitioner :- Dr. Vishal Malik
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Kushmondeya Shahi,Tanuj Shahi
 
Counsel for Respondent :- C.S.C.,Ram Krishna Yadav
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Tanuj Shahi, learned counsel for the petitioner, Sri H.K. Shukla, the learned Standing Counsel, who appears for Respondents 1, 2, 3, 4 and 5 and Sri Ram Krishna Yadav, learned counsel, who appears for the sixth respondent.

2. Since affidavits have been exchanged between the parties and the parties have made statement before the Court that they do not propose that they do not propose to file any further affidavit, thus with the consent of the parties, the case of the writ petitioner is being decided at the first stage.

3. The case of the writ petitioner is that the fifth respondent, Mufeede Aam Inter College, Agra, is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921 and the provisions of U.P. Act No.24 of 1971 stand applicable.

4. According to the writ petitioner, the fifth respondent-Institution is being managed by the Authorized Controller and there is no legally elected Committee of Management of the Institution in question. It is further the case of the writ petitioner that the post of Principal fell vacant on 31.03.2021 on account of retirement of Sri Ram Lakhan Yadav. As per the writ petitioner, though the Authorized Controller was manning the post in question, he notified the said vacancy while sending the requisition on 08.12.2021. It is the further case of the writ petitioner that on 14.06.2019, a notification has been issued, whereby amendments have been sought to be made in Regulations 55, 56, 57, 58, 59, 60 and 61 of the Chapter-III of the U.P. Intermediate Education Act, 1921. As per the writ petitioner, on 09.1.2023, pursuant to the letter dated 29.12.2022, information was sought with regard to the number of vacancies lying vacant on the post of the Principal in different institutions and according to the writ petitioner, the said document is already on record, as Annexure-3 at page-24 of the paper-book and the name of the Institution in question is at Sl. No.201 at page-29 of the paper-book showing the fact that the requisition has already been sent to advertise the vacancy on 08.12.2021. However, according to the writ petitioner, now on 30.06.2023, an order is sought to be passed by the third respondent, Addl. Director of Education (Secondary), Shiksha Nideshalay, U.P. Prayagraj, whereby the sixth respondent has been transferred to the fifth respondent institution. The grievance of the writ petitioner is that the writ petitioner has been working as an Officiating Principal since 01.04.2021 and an approval thereof has been also accorded. However, now, he seeks to be to be displaced and dislodged by the mode of transfer by placing the sixth respondent in the fifth respondent Institution by virtue of the order dated 30.06.2023.

5. Prayer in the present petition is for quashing of the order dated 30.06.2023 passed by the third respondent seeking to transfer the sixth respondent to the fifth respondent institution.

6. This Court entertained the writ petition on 11.07.2023 while passing the following orders:

"1. Supplementary affidavit filed today which is taken on record.

2. ShriTanuj Shahi, learned counsel for the writ petitioner submits that the order passed by the third respondent Additional Direction of Education (Secretary), Shiksha Nideshalay, U.P. Prayagraj, proceeds on misconception of facts and law, particularly, in view of the fact that and as according to him, once the post in question in the respondent no. 5-institution fell vacant due to the retirement of Shri Ram Lakhan Yadav on 31.03.2021 and the same was notified by the U.P. Secondary Education Service Selection Board, Prayagraj, on 08.12.2021 and the signature of the writ petitioner has been attested as officiating principal and further there is already the provisions contained in Regulation 55-61 of Chapter III of the U.P. Intermediate Education Act, 1921 amended on 14.06.2019 in particular at page 20 clause -IV, according to which once the post stands vacant and there is no notification for advertising the vacancy then only the placement by way of transfer can be done and admittedly, the name of the institution finds place in the list of the documents dated 09.01.2023 at page 24 relevant extract at page 21 Serial No. 201, then there is no occasion to accord placement to the sixth respondent.

3. Put up this case as a fresh case on 18.07.2023, by which time learned Additional Chief Standing Counsel shall obtain instructions."

7. Thereafter on 22.08.2023, this Court had passed the following orders:

"Today, when the matter has been taken up, a question arose as to whether in a contingency wherein the vacancy arose on a date 'A' and on date 'B', the requisition was sent, however, the person seeking transfer applies online on a date prior to the requisition of the vacancies, then what would be the true import and impact in that regard.

Applying the said sequence of events in the present case, it reveals that on 31.03.2021, the vacancy on the post of Principal stood arisen and the same was notified by the institution on 08.12.2021. However, prior to it, on 19.07.2021, the sixth respondent preferred an online application seeking its transfer.

Sri Shailendra Singh, learned Standing Counsel, who appears for the State respondents has placed before this Court a Government Order dated 27.01.2020, according to Clause 2(12) of the same, the transfer is permissible even at a stage when the requisition has been sent, but the vacancy has not been advertised.

A pointed query was raised by the learned counsel for the parties as to whether they are in possession of the Government Order dated 14.01.2020, which has been referred in the Government Order dated 27.01.2020, to which the learned counsels for the parties seek time to produce the same.

Sri Shailendra Singh, learned Standing Counsel, who appears for the State respondents shall file a supplementary counter affidavit bringing on record the Government Orders governing the field right from the very inception as well as a specific stand as to whether the Government Order dated 27.01.2020 is applicable to the Academic Session 2020-21 or for subsequent ensuing session in that regard.

He prays for and is accorded ten days' time to obtain instructions.

Put up on 05.09.2023 as fresh.

The Government Order dated 27.01.2020 is taken on record."

8. Learned Standing Counsel, who appears for Respondent Nos. 1 to 5 has filed a counter affidavit sworn by Associate Director of Schools, District Agra dated 17.05.2023 followed by a Supplementary Affidavit filed by Associate Director of Schools, District Agra dated 27.08.2023.

9. Sri Ram Krishna Yadav, who appears for the sixth respondent has also filed its response. A rejoinder affidavit has also been filed by the writ petitioner, which is available on record.

10. Since a statement has been made by the learned counsel for the parties that they do not propose to file any further response, thus the matter is being taken up on Board and decided at this stage.

11. Sri Tanuj Shahi, learned counsel for the writ petitioner while assailing the order dated 30.06.2023 transferring the sixth respondent to the fifth respondent Institution has sought to argue that the entire exercise undertaken by the third respondent is per se illegal, particularly in view of the fact that though the post in question, Principal of the Institution, fell vacant on 31.03.2021 and the authorized controller was manning the Institution in question, but on account of his lethargy and apathy, the requisition was not sent within the time specified therein, as according to him, Rule 10 read with Rule 11 of the U.P. Secondary Education Service Board Rules, 1998 will come into play and to the rescue of the writ petitioner, as in case of determination, the notification of the vacancy, a clear provision has been enacted, pursuant whereto for the purposes of direct recruitment to the post of a Teacher, the management shall determine the number of the vacancies in accordance with law under Sub-Section (1) of Section 10 and notify the vacancy through the Inspector in the Board in the manner, thereafter provided and the statement of the vacancy of each category of post be filled by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in a proforma given in Appendix 'A' by the management through the Inspector by July 15 of the year of recruitment and the Inspector shall after verification from the record of his office prepare consolidated statement of vacancies of the District subject-wise in respect of the vacancies of Lecturer Grade and group-wise in respect of vacancies of Trained Graduate and the consolidated statement so prepared also with the copies of the statement be received from the management be sent to Inspector by July 31. He also seeks to rely upon Rule 11(2)(b) of 1998 Rules wherein with regard to the post of Principal/ Headmaster, the management shall also forward the claims of two senior most teachers along with the copies of the service records, including the character roll and such other records or particulars, as the Board may require thereon.

12. The submission of the learned counsel for the petitioner is that his right to be considered for being appointed as Principal of the Institution in question stood wiped off and now the exercise is being sought to be undertaken while transferring a person, that too in a most illegal and arbitrary manner.

13. Learned counsel for the petitioner seeks to rely upon the judgment of the Full Bench of this Court in Prashant Kumar Katiyar vs. State of U.P. reported in (2013) 1 ADJ 523 as well as the judgment in the case of Haripal Singh Vs. State of U.P. and 10 others reported in 2010 ADJ 622, so as to further contend that the time line so stipulated in Rule 13 is mandatory and deviation itself is not permissible and in this regard, he seeks to rely upon paragraph-15 in the case of Haripal Singh (supra) as well as paragraph-43 of the Full Bench judgment in the case of Prashant Kumar Kariyar (supra). He also seeks to rely upon the judgment in the case of Birendra Kumar Srivastava vs. State of U.P. and others, reported in 2017 (1) ADJ 809 with regard to the right of an Officiating Principal with respect to the recruitment exercise to be undertaken for appointment on the post of Principal in the light of time line provided in the Rules.

14. Sri Ram Krishna Yadav, who appears for the sixth respondent on the other hand submits that in the present case in hand as per the own saying of the writ petitioner, the post of the Principal stood vacant on 31.03.2021 creating a vacancy on account of retirement of Sri Ram Lakhan Singh and further as per the own saying of the writ petitioner, the vacancy stood notified on 08.12.2021. He while inviting attention towards the counter affidavit filed by him, has sought to argue that the entire exercise undertaken for transfer of the sixth respondent to the fifth respondent-institution was prior to the sending of the requisition/ notification of the vacancy, as according to him, the sixth respondent submitted his online application on 17.07.2021, which was forwarded from the office of District Inspector of Schools, Agra on 19.07.2021 and on account of ongoing litigation in Writ Petition No.9194 of 2021, Rakesh Kumar and 7 others Vs. State of U.P. and 2 others, an interim order was passed on 19.08.2021 that in the meantime process may go on, but no final decision will be taken. However, subsequently, the said order stood modified on 17.11.2022 and thereafter the claim of the sixth respondent was processed and he was sought to be transferred on 30.06.2023. He further submits that as per the judgment in the case of Prashant Kumar Kariyar (supra) followed in Haripal Singh (supra), none of the conditions comes in favour of the writ petitioner, as here in the present case, before sending of the requisition, the exercise has been undertaken for the transfer of the sixth respondent and further the vacancy till date has not been advertised. He further submits that even in fact various advisories have been issued by the educational department to fill up the vacancies on the post of the Principal as the work is being hampered.

15. Sri H.K. Shukla, learned Standing Counsel, who appears for Respondent no. 1 to 5 has supported the argument of Respondent no.6. He further submits that he has nothing further to add. According to him, may be the writ petitioner is right in contending that there has been a delay in sending the requisition after determination while notifying the vacancy, but that would not be fatal and according to him, the writ petitioner's status is of an Officiating Principal and he cannot resist the transfer of the sixth respondent. However, according to Sri H.S. Shukla, the learned Standing Counsel, who appears for Respondent nos. 1 to 5, the writ petitioner may represent his cause before the second respondent, Director of Education (Secondary), U.P. Prayagraj, who shall address to the claim of the writ petitioner.

16. Sri Ram Krishna Yadav has also made a statement at Bar that the said issues, which are being sought to be raised be addressed by the second Respondent, Director of Education (Secondary), U.P. Prayagraj. Additionally, it has been sought to be argued on behalf of the sixth respondent while inviting attention towards paragraph-13 (Annexure-CA5) that once a transfer has been proposed, then it is be stand of the educational authorities that no requisition would be sent.

17. Ordinarily, in normal circumstances, this Court would have undertaken the task of deciding the matter on merits. However, as rightly stated by Sri Tanuj Shahi, learned counsel for the writ petitioner, Sri H.K. Shukla, learned Standing Counsel who appears for Respondent nos. 1 to 5 and Sri Ram Krishna Yadav, who appears for Respondent no.6 that the matter be decided at the level of the Director of Education (Secondary), U.P. Prayagraj, so this Court in view of the stand taken by them is not addressing the merits of the matter while leaving it open to the second respondent to address the said issues raised by the rival parties.

18. Accordingly the writ petition is disposed off in following terms: (a) the writ petitioner shall approach the second respondent, Director of Education (Secondary), U.P. Prayagraj along with a comprehensive representation accompanied with self-attested copy of the writ petition on 13.10.2023; (b) the sixth respondent shall also prefer its version before the second respondent on 13.10.2023; (c) on that date, written versions so submitted by the parties shall be exchanged; (d) hearing be done in the third week of October, 2023; (e) Orders be passed by the 31st of October, 2023; (f) the second respondent while deciding the matter shall bear in mind the following fundamental and core issues: (a) the issue with respect to transfer of the sixth respondent to the fifth respondent-institution by virtue of the order dated 30.06.2023 in the light of the notification dated 14.06.2019 and the Government Order dated 27.12.2020; (b) the import and impact of the occurrence of vacancy on the post of Principal on 31.03.2021 and sending of the requisition / notification on 08.12.2021; (c) the import and impact of the exercise undertaken for transferring the sixth respondent to the fifth respondent prior to requisition of the vacancies/ notification dated 08.12.2021; (d) The applicability of judgment in the case of Prashant Kumar Kariyar (supra) and Haripal Singh (supra) in the instant matter; (e) the allegation of the writ petitioner on account of lethargy and apathy of the Authorized Controller in not sending the notification / requisition for the post in question in the light of the provisions contained under Rule 10 read with Rule 11 of the U.P. Secondary Education Services Selection Board Rules, 1998; (f) any other ancillary or incidental issues connected with the same.

19. Needless to point out that the writ petitioner has been decided without seeking any response from the respondents, thus passing of this order may not be construed to an expression that this Court has adjudicated the matter on merits.

20. With the aforesaid observations the writ petition stands disposed off.

Order Date :- 6.10.2023

N.S.Rathour