Allahabad High Court
Smt. Sudha Rani Upadhyay vs State Of U.P. And Others on 28 May, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 21.01.2013 Delivered on 28.05.2013 Court No. 34 Case :- WRIT - A No. - 21470 of 2012 Petitioner :- Smt. Sudha Rani Upadhyay Respondent :- State of U.P. and Others Petitioner Counsel :- Shailendra Respondent Counsel :- C.S.C., Amit Shukla, Nisheeth Yadav Hon'ble Sudhir Agarwal, J.
1. This writ petition is directed against the order dated 25.4.2012 (Annexure 11 to writ petition) passed by Additional Director of Education (Secondary-3) U.P. at Allahabad, respondent no. 2 (hereinafter referred to as "ADE"), whereby Smt Nandini Tiwari, respondent no. 6, working as Principal, Sri Radha Raman Mahila Inter College, Naini, Allahabad has been transferred, in the same capacity, in Jagat Taran Girls Intermediate College, Allahabad.
2. Heard Sri Shailendra, Advocate, for petitioner; and learned Standing Counsel, and, Sri Amit Shukla and Sri Nisheeth Yadav, Advocates, for respondents.
3. Facts, in brief, giving rise to the present dispute are as under.
4. Jagat Taran Girls Inter College, George Town, Allahabad (hereinafter referred to as "College-1"), a duly recognized College under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"), is governed by the aforesaid Act as also the Rules and Regulations framed thereunder. Petitioner is a Lecturer having been appointed in the College-1 on 16.9.1988, initially on officiating/ad-hoc basis, but subsequently regularized on 7.8.1993. One Smt. Kiran Bala was working as Principal of the College and after attaining age of superannuation, she retired on 30.6.2011, i.e. at the end of session, as provided in the Regulations.
5. A substantive vacancy on the post of Principal of College-1, therefore, arose on 1.7.2011.
6. Petitioner, being senior most Teacher in College-1, was given appointment on officiating basis as Principal vide Committee of Management's resolution dated 10.9.2011.
7. Respondent no. 6 was working as Principal in another institution, namely Sri Radha Raman Girls Inter College, Naini, Allahabad (hereinafter referred to as "College-2"). She sought transfer from College-2 to College-1, for which, Management of College-2 passed a resolution expressing "no-objection" in her transfer and documents were forwarded to District Inspector of Schools (II), Allahabad (hereinafter referred to as "DIOS"). The Committee of Management of College-1 also expressed their "no-objection". The aforesaid request of transfer, however, was turned down by DIOS vide letter/order dated 30.11.2011 on the ground that as per Government Order (hereinafter referred to as "G.O.") dated 5.9.2011, no request for transfer of a Teacher, including the Principal from one educational institution to another shall be entertained unless one has completed three years regular service. Since Smt. Nandini Tiwari, respondent no. 6 was appointed as Principal on 12.8.2010 and, therefore, she did not fulfil the aforesaid requirement, hence could not have been permitted to be transferred, as requested.
8. The Management of the College-1 was directed by DIOS to proceed further for selection, by direct recruitment, on the post of Principal, through U.P. Secondary Education Services Selection Board (hereinafter referred to as "Selection Board").
9. The Committee of Management of College-1 came to challenge the order dated 30.11.2011 in Writ Petition No. 727 of 2012. When this writ petition was pending, learned counsel appearing for petitioner, i.e., Committee of Management, College-1 informed the Court that the bar of three years introduced by G.O. dated 5.9.2011 has now been removed and now the Management shall take fresh decision in the matter. In view of the above statement, writ petition was dismissed on 6.1.2012.
10. The Management of College-2, vide letter dated 12.4.2012, informed the Joint Director of Education, Allahabad (hereinafter referred to as "JDE") that the matter pertaining to transfer of Smt. Nandini Tiwari to College-1 need not be proceeded further. The proposal of Management of College-2 on this aspect be treated as revoked. However, ADE passed impugned order of transfer.
11. Subsequently by an amendment application, which was allowed on 6.12.2012, petitioner sought to challenge Regulations 55 to 59 Chapter III of the Regulations and also provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act") as ultra vires.
12. A counter affidavit has been filed on behalf of respondents no. 1, 2 and 3, sworn by Sri Mahendra Kumar Singh, DIOS. It is said that a proposal for transfer of respondent no. 6 from College-2 to College-1 was forwarded by DIOS to JDE vide letter dated 20.9.2011. The said proposal claimed "no-objection" given by the Managements of two Colleges and the application of respondent no. 6, requesting for such transfer. The JDE in its turn, forwarded said proposal to ADE vide letter dated 24.9.2011. At the Directorate level, scrutiny of papers revealed that respondent no. 6 had joined as Principal of College-2 on 12.8.2010, hence in view of the GO No. 2429/15-12-11-1606(1)/2011 dated 5.9.2011, she having not completed three years' regular service on the aforesaid post, was not entitled for such transfer. The Proposal, accordingly was not accepted and by Directorate's letter dated 3.10.2011, the decision rejecting the aforesaid proposal was conveyed to JDE as well as DIOS. It is this decision, which was conveyed by DIOS vide letter dated 30.11.2011. Simultaneously, the State Government vide Notification No. 2048/15-12-11-1606 (1)/2011 dated 30.11.2011, withdrew condition of three years service before seeking transfer from one institution to another, making amendment in Regulation 15, Chapter III of the Regulations. In view of aforesaid amendment, Smt Nandini Tiwari, Principal of College-2, made an application dated 9.12.2011 to DIOS requesting to forward her case in the light of Government Notification dated 30.11.2011. DIOS forwarded the said letter in original vide his letter dated 9.12.2011 to ADE, recommending for re-consideration. The DIOS forwarded another letter dated 15.12.2011 along with Manager, Committee of Management, College-1's letter dated 14.12.2012 whereby a request was made for re-consideration of the matter. Subsequently, Court's order dated 6.1.2012 in Writ Petition No. 727 of 2012 was also forwarded by JDE to ADE, stating that this Court had directed for a fresh decision in the matter. In the light of the aforesaid direction of this Court, the Management of College-1 took a decision to fill the post of Principal by transfer and conveyed the said decision vide letter dated 15/16.1.2012. It is in the light of the direction of this Court as also "no-objection" conveyed by the Management of College-1, the Committee constituted at Directorate level to consider the matter of transfer, in its meeting dated 25.4.2012, decided to transfer respondent no. 6 from College-2 to College-1 and the decision was conveyed by Directorate's letter dated 25.4.2012.
13. With respect to the right of petitioner to challenge transfer, it has been averred that she being an ad-hoc Principal, had no right to prevent a regularly appointed Principal to join College-1. The transfer is permissible under the Statute and has been made in accordance with procedure prescribed therefor. With respect to petitioner's right to challenge transfer, same facts have been reiterated in supplementary counter affidavit sworn on 1.10.2012 by Sri Mahendra Singh, DIOS on behalf of respondents 1, 2 and 3.
14. A separate counter affidavit has been filed on behalf of respondent no. 5, which has been sworn by Dr. Milan Mukherjee, Manager, Committee of Management, College-1. Respondent no. 5 has also challenged right of petitioner to assail transfer of respondent no. 6 to College-1 from College-2 and it is also said that letter dated 12.4.2012 (Annexure 10 to writ petition), said to have been written by Management of College-2, is without any authority since neither it was approved by Committee of Management nor issued by the Manager, who was legally authorized to make correspondence on behalf of Management. Other facts regarding proposal made for taking respondent no. 6 by transfer etc. are the same as stated in counter affidavit filed on behalf of respondents no. 1, 2, and 3.
15. Respondent no. 6 has also filed a separate counter affidavit and there also petitioner's locus standi to challenge her transfer has been questioned, besides questioning the letter dated 12.4.2012 (Annexure 10 to writ petition). She has further stated that the post of Principal of College-1 was going to fall vacant due to retirement of Smt. K.B. Srivastava (i.e. Kiran Bala Srivastava), the then Principal on 30.6.2011 and, therefore, in anticipation of occurrence of substantive vacancy, she (respondent no. 6) vide letter dated 7.6.2011 requested respondent no. 5 to allow her to join College-1 on transfer, in accordance with procedure prescribed in law. The Management of College-1 passed a resolution on 14.6.2011 expressing "no-objection" for transfer of respondent no. 6 and conveyed the said resolution to respondent no. 6 on 18.6.2011. Similarly, a resolution was passed by Management of College-2 expressing their "no-objection" to transfer of respondent no. 6. All these documents were forwarded to DIOS by Manager of College-2 vide letter dated 29.7.2911. While the matter was pending for consideration, Regulation 15 was amended vide G.O. Dated 5.9.2011, whereupon respondent no. 6 became ineligible for transfer. However, the aforesaid amendment underwent further alteration/ change pursuant to G.O. dated 30.11.2011 whereby requirement of three years' service was withdrawn. Consequently, respondent no. 6 on 11.12.2011 apprised respondent no. 5 about G.O. dated 30.11.2011, and, simultaneously, requested DIOS also to re-consider her. Respondent no. 5 also informed DIOS vide letter dated 14.12.2011 about G.O. dated 30.12.2011 and requested for necessary action. Subsequently, it appears that a fake resolution dated 16.12.2011 was conveyed to DIOS by College-1 for direct recruitment on the post of Principal. Be that as it may, ultimately competent authority passed order dated 25.4.2012, transferring respondent no. 6 from College-2 to College-1 and the said order is in absolute compliance of statutory requirement, hence warrants no interference.
16. A supplementary counter affidavit sworn on 4.7.2012 has also been filed by respondent no. 6 alleging that petitioner is trying to take undue advantage so as to stay as ad-hoc Principal of College-1 and deprive respondent no. 6 from joining on the said post. Petitioner appeared before Board in the process of recruitment for the post of Principal, for four times in past, but always remained unsuccessful. The aforesaid selections were held in 1995, 1996, 1998 and 2008. The process of transfer of respondent no. 6 had already been initiated before amendment of Regulation 15, but on account of sluggish approach of educational authorities, it was delayed and deferred and all the complications have arisen. Respondent no. 6 is a candidate selected by Selection Board for the post of Principal and has better rights and merits. Her transfer, being consistent with law, warrants no interference.
17. By another supplementary affidavit sworn on 3.9.2012, serious doubts on the authenticity of letter dated 12.4.2012 (Annexure 10 to writ petition) have been raised.
18. Petitioner has reiterated its stand in the rejoinder affidavit and has clarified the ground of challenge stating that after amendment of Regulation 15 vide G.O. dated 30.11.2011, no fresh proceedings have been undertaken by the respondents and it is on the basis of earlier proceedings, which already stood concluded and rejected, the impugned order of transfer has been passed though respondents-educational authorities had no power of review and, therefore, the impugned order of transfer is illegal.
19. Sri Shailendra, learned counsel for petitioner, reiterated the above grounds during the course of oral submission. He said that without taking fresh decision, obtaining no-objection from the Managements of two Colleges and fresh consideration of matter, respondents could not have passed impugned order of transfer. He further contended, if a vacancy has not been notified to Selection Board, no appointment could have been made, in such circumstances, by way of transfer, since there was no fresh initiation. In any case, the procedure laid down in the Statute having not been followed, the impugned order of transfer is patently illegal. He also contended, when a substantive vacancy of Principal has to be filled in by Selection Board, two senior most teachers of the College in which the vacancy is existing, would be entitled for consideration for the aforesaid post, but in case the vacancy is allowed to be filled in by transfer, right of petitioner, being the senior most Teacher, to be considered for aforesaid post would stand defeated and, therefore, the transfer of respondent no. 6 is illegal and arbitrary.
20. Sri Nisheeth Yadav and Sri Amit Shukla, learned counsels appearing for respondents no. 5 and 6 contended that a person, working as officiating Principal, has no right to challenge transfer of a regularly appointed Principal from one College to another. Reliance is placed on Single Judge's decisions in Laxmi Shankar Bajpai Vs. Add. Director of Education (Secondary), U.P., Allahabad and others 2008 (8) ADJ 250 and Civil Misc. Writ Petition No. 34247 of 2009 (Hriday Kant Tiwari Vs. State of U.P. and others) decided on 22.10.2010. Replying contention in respect of right of senior most Teacher, it is urged that senior most Teacher has only right to be considered for appointment when the vacancy is advertised and not a right of promotion so as to defeat right of duly appointed Teacher to seek transfer, in such institution. In this regard, reliance is placed on Sneh Lata Saxena Vs. State of U.P. and others 2005 (5) AWC 5056.
21. The DIOS has also placed original record, dealing matter of transfer of petitioner before this Court, for its perusal, pursuant to this Court's order dated 3.12.2012.
22. I have heard submissions at great length and also perused the relevant statute and judicial authorities cited at the bar in connection with the issues which have arisen in this case.
23. The questions which need be considered by this Court, in my view, would be:
(1) Whether the impugned order of transfer has been passed by educational authorities after following the procedure prescribed in the statute?
(2) Whether the right of senior most Teacher of a College to be considered for direct appointment on the post of Principal is such which may override a provision, entitling an already appointed Principal, for transfer in another College, after following the procedure prescribed in statute, where the vacancy has arisen, so as to cease requirement of any direct recruitment in such College? In other words, whether right of consideration of a senior most Teacher is a vested right, so much so, that whenever the post of Principal becomes vacant, it will have to be filled in by direct recruitment for enabling such Teacher to have his right protected or is contingent to the condition that the vacancy, if is to be filled in by direct recruitment and so requisitioned to the Board and advertised by the Board for direct recruitment, he shall be considered and not otherwise?
(3) Whether petitioner has any locus standi to maintain this writ petition or not?
24. Provisions governing transfer of a 'Teacher' which includes the Principal also, from one secondary educational institution to another, are given in Regulations 55 to 61 of Chapter III of the Regulations framed under Act, 1921.
25. The procedural steps required for transfer as provided in the Regulations, are following:
(i) In the case of Principal, an application by concerned Teacher, addressed to concerned JDE, shall be submitted to the Manager of the College in which the Principal is seeking transfer.
(ii) The Manager shall place the matter before Committee of Management and after consented by Committee of Management, application along with a copy of service book and character roll, shall be furnished to DIOS of the District, in which the College, wherefrom transfer is sought, situate.
(iii) The DIOS shall enter application in the register maintained in his Office, and, if the College in which transfer is sought is within his jurisdiction, shall consult Management of such College. After obtaining their written consent, the DIOS shall submit his recommendation to JDE of his own jurisdiction.
(iv) Where the transfer has been sought to the College which is within the jurisdiction of JDE, he (JDE) shall place the matter before Committee referred to in Regulation 59 (1) (a) (III) and where the transfer is sought in a institution which is beyond the jurisdiction of JDE, he shall forward application to ADE. This procedure is applicable for transfer of a Teacher (L.T. Grade).
(v) In respect to transfer of a Lecturer or Principal, the JDE shall refer the matter to ADE, if transfer is sought to an institution situate in jurisdiction of any other JDE. Where the transfer is sought in a College which is within his own jurisdiction, he shall obtain written consent from the concerned institution where the transfer is sought and thereafter forward to ADE.
(vi) The ADE shall record every application received in the concerned register maintained in his Office and thereafter place the matter before a Committee under Regulation 59 (2) (C).
(vii) As per the recommendation of Committee, the appropriate orders for transfer or otherwise shall be issued and Committee of Management of concerned College shall act accordingly.
(viii) Such order of transfer shall be final.
(ix) Within one month of transfer, the Management of College wherefrom transfer has been made, shall forward entire service record of transferred Teacher, namely service book, leave account, provident fund account, group insurance account and last pay certificate, to the concerned DIOS or JDE.
(x) The transferred Teacher shall not be entitled for any travelling allowance.
(xi) The conditions of service of such transferred Teacher or Principal shall remain the same with all benefits subject to conditions under Regulation 61 (2) (b).
(xii) The transfer is permissible from one aided institution to another aided institution and from one unaided institution to another unaided institution. In other words, a transfer from one aided institution to another unaided institution and vice versa is not permitted.
(xiii) If the Teacher is in reserved category, the resultant vacancy shall be filled in from that reserved category itself.
26. It is not disputed between the parties that Regulations have been framed in exercise of power under Section 16-G (2) of Act, 1921, are statutory and lay down a mandatory procedure.
27. If this Court scrutinizes the chain of events, it comes as under.
28. On 7.6.2011 the application seeking transfer was submitted by respondent no. 6 to College-1 where she sought transfer and not to the College in which she was working. On 14.6.2011, the Management of College-1, passed resolution giving consent for her transfer and conveyed the same on 18.6.2011 to respondent no. 6. The Committee of Management of College-2 passed resolution on 11.7.2011 giving consent and conveyed No-objection Certificate dated 12.7.2011 to the respondent no. 6. Thereafter respondent no. 6 wrote a letter dated 25.7.2011 appending proforma application signed by her with date 10.6.2011. This application is addressed to DIOS, stating that she is requesting for transfer from College-2 to College-1 and both the Managements having conveyed their consent, she is submitting application in prescribed form with all requisite documents for further action. The application was forwarded by Manager, Committee of Management, College-2, vide letter dated 29.7.2011. The JDE forwarded it to ADE vide letter dated 24.9.2011. The ADE vide letter dated 3.10.2011 rejected request of transfer, in the light of amendment of Regulation 15, Chapter III of the Regulations by Notification dated 5.9.2011. The above decision was conveyed to Manager, Committee of Management, College-1 vide letter dated 30.11.2011. Regulation 15 amended by Notification dated 5.9.2011 underwent further amendment by Notification dated 30.11.2011 and condition of three years' service was withdrawn. Respondent no. 6 brought this fact to the notice of DIOS vide letter dated 9.12.2011 and requested for re-consideration of her matter. On the same date, DIOS made recommendation to ADE directly vide letter dated 9.12.2011 which was received in the Office of ADE on 12.12.2011 by Special Messenger, as is evident from a perusal of original record. Thereupon ADE passed order of transfer which is impugned in this writ petition.
29. Some more facts. Both the Colleges are within the jurisdiction of same DIOS, and same JDE.
30. An argument was advanced that amendment made in Regulation 15 by Notification dated 5.9.2011, would not have rendered respondent no. 6, ineligible for transfer, since process was initiated before amendment. The pendency of the matter before JDE or ADE would not have imported a subsequent disability provision which was prospective. Even if this argument is accepted, I am of the view that the procedure prescribed in the Regulations, seeking transfer, on the face of it, has not been followed and observed strictly, i.e. in words and spirit.
31. A Teacher or Principal seeking transfer from one College to another has no right to directly request another College asking for its consent for transfer, since there is no relationship of any kind between such institution and the Principal concerned. The scheme and procedure prescribed in the Regulations also suggest and demonstrate it. It has valid explanation, a genuine reason and a known service jurisprudential philosophy, transfer being an exigency of service, if permitted under the Statute, shall be allowed strictly in accordance with such procedure prescribed in the statute. Such transfer should not be motivated or colluded or should be a result of otherwise lack of bona fide on the part of individuals or body incorporated i.e. the educational institution. The responsibility to seek consent of the College, wherein transfer is sought, either is that of concerned DIOS or JDE. The procedure prescribed in the Regulations nowhere contemplates that such consent can be obtained by Teacher or Principal himself or herself, whereafter DIOS or JDE would be acting like a Post Office and simply forwarding the matter to ADE, without having any role on their part. It is something uncommon and shows an unholy nexus between respondent no. 6 and Management of College-1, so much so, that College-1 challenged order passed by educational authorities rejecting request of transfer of respondent no. 6 before this Court though, by no stretch of imagination, Management of College-1 could have satisfied requirement of 'person aggrieved' in the case in hand. The respondent no. 6, who initiated the process and was interested in such transfer, did not feel aggrieved to challenge the order of rejection of her request.
32. The procedure prescribed in the Regulations has already been extracted and explained earlier and the procedure followed in the case in hand has also been referred above which make it amply clear that a respondent no. 6 did not follow the procedure prescribed in the Regulations seeking transfer from one College to another. From very bigging, respondent no. 6 has acted in a self-styled manner probably for the reason that she was already having a nexus with both the Colleges.
33. On behalf of respondents, it was attempted to be argued that some deviation from the procedure prescribed in the Regulations would not be material, as that may be only an irregularity which shall not vitiate the ultimate order. It causes no prejudice or harm to any one.
34. The submissions, though appears to be a little attractive but on closure scrutiny, reveals its shallowness and futility. One of the basic principle, now well established and recognized in law, is, that once something is required to be done in a particular manner, things have to be done strictly in accordance therewith. Any thing done otherwise would be illegal.
35. This principle was recognized in Nazir Ahmad Vs. King-Emperor AIR 1936 PC 253 and, thereafter it has been reiterated and followed consistently by the Apex Court in a catena of judgements, which I do not propose to refer all but would like to refer a few recent one.
36. In Dhananjaya Reddy Vs. State of Karnataka 2001 (4) SCC 9 in para 23 of the judgment the Court held :
"It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all."
37. In Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala 2002 (1) SCC 633, it was held :
"It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself."
38. The judgments in Anjum M.H. Ghaswala (supra) and Dhananjaya Reddy (supra) laying down the aforesaid principle have been followed in Captain Sube Singh & others Vs. Lt. Governor of Delhi & others 2004 (6) SCC 440.
39. In Competent Authority Vs. Barangore Jute Factory & others 2005 (13) SCC 477, it was held :
"It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning."
40. In State of Jharkhand & others Vs. Ambay Cements & another 2005 (1) SCC 368 in para 26 of the judgment, the Court held :
"It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
41. In the present case, the procedure in Regulations 55 to 61 having not been observed, as stated herein, it is nothing but complacency on her part to suggest that she can claim immunity after obtaining order in her favour by contending that the deviation, if any, in the observance of procedure, deserves to be condoned. This is nothing but a self styled condonation and asking for a premium for not following the procedure prescribed in statute in words and spirit. Besides, it also shows that the transfer in the case in hand is not a simple act of transfer, but is a premeditated and predetermined collusive act making educational authorities to act in a well calculated manner. It demonstrates something other than what is contemplated in the statute. The Committee of Management, College-1 passing resolution by entertaining application or request of respondent no. 6 directly shows that they are in league. On the occurrence of vacancy on the post of Principal, College-1 was already determined to have transferred her on the said post. I need not go into any possible motive therein but suffice it to observe that such procedure having not been provided in the Regulations, respondent no. 6, on her own, could not have approached College-1, to seek its consent for her transfer in College-1.
42. However, I need not detain myself on this aspect since this may not be the sole basis to judge validity of order of transfer, impugned in this writ petition, but there are other discrepancies including the subsequent events, which are more evident and patent, going to the root of the matter.
43. The aforesaid process of transfer initiated by respondent no. 6 ceased when the competent authority, namely, ADE rejected her request for transfer. The DIOS communicated rejection order to respondent no. 6. She did not challenge the aforesaid order and qua her the same attained finality. It is the College-1 where respondent no. 6 had sought transfer which came to this Court challenging the order of educational authorities rejecting application of respondent no. 6 for her transfer from College-2 to College-1. This writ petition was dismissed on 6.1.2012. A perusal of this order shows that no direction was issued by this Court to any of the parties to do or not to do something and, that too in a particular manner. There are three paragraphs in the order, first one refers to the reason, giving an occasion to file the aforesaid writ petition, the second paragraph refers to the basis on which decision was taken for rejecting the transfer application of respondent no. 6 and third paragraph noticed the statement given by counsel for petitioner, i.e. Committee of Management, College-1, that Management of College-1 shall take a fresh decision in the matter in view of amendment of Regulations by Notification dated 30.11.2011. This was a self claimed statement made by learned counsel appearing for petitioner and there is nothing in the order showing that the Court either accepted the same or rejected it or passed any order approving the said statement. The fact remains that the order dated 30.11.2011 which was assailed in Writ Petition No. 727 of 2012 survived, continued and has not been set at naught by this Court.
44. That being so, the question would be, whether a fresh decision said to have been taken by Committee of Management of College-1, where the Teacher or Principal is seeking transfer, could have made any difference or distinction in the facts and circumstances of this case? The answer is, simply, "No". Management of a College, where a Teacher or Principal is seeking transfer from another College in which he or she is working, has only one duty to perform, and, that is its consent for such transfer. It can always veto such request by declining to grant such consent and if it decides to grant consent, it only opens the way for the concerned Teacher or Principal for getting his/her application, processed further, as provided in Regulations 55 to 61 of Chapter III of the Regulations and discussed in detail above. The occasion for the Management to give consent would arise only when it is so requested either by the concerned DIOS or the JDE, as the case may be but not otherwise. Therefore, so far as the Management of College-1, i.e. respondent no. 5, is concerned, it had a very little role in the matter of transfer. Its role is only to enable the concerned Teacher or Principal to come on transfer to its College, but otherwise it is the request, desire or intention of the concerned Teacher alone, which has to be considered by educational authorities in accordance with procedure prescribed in Regulations. The ultimate acceptance or denial of such request of Teachers/Principal is a matter between the competent educational authority and such Teacher/Principal and none else.
45. In support of College-1, it may be said that getting a Teacher on transfer will result in making them available a Teacher in a shorter time for the reason that a direct recruitment through Board takes much longer time but that is only an exigency in observance of procedure of the Statute and by itself does not result in creating a legal actionable right in such Management.
46. Be that as it may, it cannot be doubted that the earlier decision of ADE rejecting request of transfer of respondent no. 6, conveyed by DIOS vide letter dated 30.11.2011 attained finality vis-à-vis all the parties for the reason that respondent no. 6 did not challenge it and the challenge initiated by respondent no. 5, i.e. Committee of Management, College-1, failed after dismissal of the writ petition. The effect of dismissal of writ petition means that the order challenged therein would continue with all legal consequences and shall have its ultimate legal implications as such.
47. Moreover, Regulation 59 (3), Chapter III declares that the order passed by competent authority in the matter of transfer shall be final. It reads as under:
"(3) The order issued under sub-regulation (1) or sub-regulation (2) shall be the order of the management and shall be final."
48. There is no provision for its review or re-consideration. It is not the case of the parties that Directorate's letter dated 3.10.2011 rejecting request of transfer and DIOS's letter dated 30.11.2011 conveying the said decision to the parties concerned was result of any kind of fraud or misrepresentation. This being an order passed in exercise of statutory powers, by authority competent to do so, could not have been reviewed or recalled in absence of any power of review, conferred upon such authority, under the statute. No such power of review or re-consideration has been shown to exist in the statute. Thus, so far as earlier initiation of transfer matter of respondent no. 6 from College-2 to College-1 is concerned, the same came to an end after rejection thereof by ADE and that order attained finality having not been challenged by respondent no. 6 and in any case when challenge by respondent no. 5 failed in this Court, after dismissal of Writ Petition No. 727 of 2012.
49. It also cannot be doubted that thereafter a fresh process/procedure could have been observed by respondents. No such procedure, however, has been observed by the respondents. It is only on a letter submitted by respondent no. 6 that her matter may be re-considered, the DIOS recommended the matter directly to ADE and thereafter ADE had passed the impugned order. In the counter affidavit, the educational authorities have tried to take shelter behind this Court's order dated 6.1.2012 though this is nothing but a mischievous attempt to mislead this Court. No direction has been given by this Court. None could be shown from this Court's order during arguments. It appears that knowing well that before passing impugned order, the educational authorities have not followed and observed statutory procedure, to guard themselves now they are trying to stay behind this Court's order which is palpably a futile and fallacious endeavour. This attempt also exposes their lack of ordinary prudence and efficiency. I find it extremely difficult to sustain such order. It is not in compliance of the procedure of transfer contained in Regulations 55 to 59 of Chapter III of the Regulations. The question no. 1, therefore, is answered in negative i.e. against the respondents.
50. Now coming to the second question, in my view, this need not detain this Court any longer since it stands answered in Dinesh Bahadur Singh Vs. State of U.P. 2004 (4) AWC 2945 wherein Hon'ble Sunil Ambwani, J. has held that right of senior most Teacher to be considered for direct appointment as Principal is subject to the condition of requisition of vacancy to the Board and advertisement of the vacancy by it accordingly. It is a not a right of promotion so much so as to defeat the right of a duly appointed Principal to seek transfer to another institution wherein a vacancy is available. Taking any other view would mean that no transfer would be possible and permissible if the argument advanced on behalf of petitioner with so much width is accepted.
51. The above decision has been followed in a subsequent decision in Sneh Lata Saxena (supra) and in para 10 thereof this Court has said:
"I found that the two senior most teachers have a right to be considered if the vacancy is advertised. There are other methods of filling up the post of Principal namely by transfer, which was not accepted, in Om Prakash Rana v. Swaroop Singh Tomar, AIR SC 1672, but thereafter Section 16 of Act 1982, was amended adding a proviso, permitting transfer of a teacher from one institution to another to be made in accordance with Regulations under Clause-C of sub section (2) of Section 16-G of the U.P. Intermediate Education Act 1921."
52. I have no reason to take a different view in this matter and respectfully show my deepest regard and agreement to the dictum laid down therein. I thus answer second question in negative and against the petitioner.
53. Then comes the last question about locus standi of petitioner. The fact that petitioner has been unsuccessful in regular selection for appointment to the post of Principal in past, would have no impact on her right to officiate after occurrence of vacancy on the post of Principal, being senior most Teacher of the College. This right of petitioner has not been doubted. The only question is, whether she can object transfer of a regularly selected Principal from another institution to the institution in which such Teacher is officiating a Principal. The answer would have been "No" provided such transfer has been given effect by following the procedure prescribed in law and not otherwise. A validly effected transfer of Principal from one College to another cannot be objected by a Teacher, officiating as Principal, only on the ground that such appointment by transfer would result in cessation of her/his right to officiate on the post of Principal. In fact, such right of senior most Teacher is not absolute but contingent. It is applicable only till a validly selected Principal is not appointed. There are various sources of appointment, namely, direct recruitment, promotion and transfer. Transfer is a mode of appointment of Teachers. Once an appointment by transfer is validly made, an officiating Principal can not create any hurdle in such appointment. The condition precedent to deny locus standi to such officiating Principal would be that the appointment by transfer has been made validly and in accordance with the procedure prescribed in Statute. This is evident from what has been said in Hriday Kant Tiwari (supra):
"In such a situation and in this background transfer has been made of a duly selected candidate with the concurrence of both the Committees of Management of the institutions concerned and with the tacit approval of the authorities concerned, then the officiating/adhoc Principal has no authority to question the validity of said transfer order, which has been made strictly in accordance with law."
(emphasis added)
54. The dictum, to the same effect I find in Laxmi Shankar Bajpai (supra) also. A bare reading of the aforesaid judgments show that with respect to procedure of transfer observed therein, this Court did not find any infirmity therein and that being so it was held that an officiating Principal cannot challenge transfer of a permanent Principal so as to retain Office of Principal in officiating capacity in that College. However, if the transfer has not been made validly and in accordance with procedure prescribed in the statute, the locus standi of such Teacher, in my view, cannot be doubted. At least no such authority or binding precedent wherein a view otherwise has been taken was brought to my notice. The question no. 3 is, therefore, answered accordingly.
55. Before parting, it would also be necessary to refer the issue of vires of Regulation 55 to 59 raised by way of amendment of the writ petition. Learned counsel did not stress upon this aspect during the course of arguments. The reason is quite obvious. After the decision in Om Prakash Rana Vs. Swarup Singh Tomar AIR 1986 SC 1672 the legislature intervened and enacted U.P. Secondary Education Services Commission and Selection Board (Amendment and Validation) Act, 1991 whereby Section 16 of Act, 1982 was amended by inserting a proviso and thereby saving Regulations relating to transfer. Subsequently, Section 16 itself was replaced by U.P. Act No. 1 of 1993 protecting appointment of retrenched teachers under Section 16EE of Act, 1921 and also transfer in accordance with Regulations made under Section 16-G (2) (C) of Act, 1921. Hence the Regulation cannot be said to be ultra vires of Act, 1982. This legislative change and its effect has been discussed in Brijendra Singh Vs. Regional Deputy Director of Education 1997 ALJ 886.
56. In view of above and considering the manner in which the issues no. 1, 2 and 3 have been returned by this Court, this Court has no hesitation in holding that the order impugned in this writ petition cannot sustain.
57. The writ petition is, accordingly, allowed. The impugned order dated 25.4.2012 (Annexure 11 to writ petition) is hereby quashed. The petitioner shall also be entitled to costs which I quantify to Rs. 20,000/- in the manner that Rs. 5,000/- shall be borne by respondents 1 to 3, Rs. 5,000/- by respondent 5 and Rs. 10,000/- by respondent 6.
Dt. 28.5.2013 PS/KA