Allahabad High Court
Moulabi Ram vs State Of U.P. And 4 Others on 5 March, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:39809 A.F.R. Reserved on : 18.01.2024 Delivered on : 05.03.2024 Court No. - 34 Case :- WRIT - A No. - 11279 of 2023 Petitioner :- Moulabi Ram Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Samarath Singh,Ramesh Chandra Tiwari Counsel for Respondent :- CSC,Naresh Chandra Tripahti,Suchita Tripathi,Trilok Nath Dubey With Case :- WRIT - A No. - 17926 of 2023 Petitioner :- Ramyash Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Suchita Tripathi,Naresh Chandra Tripahti Counsel for Respondent :- CSC,Ramesh Chandra Tiwari And Case :- WRIT - A No. - 7516 of 2023 Petitioner :- Mahatim Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Naresh Chandra Tripahti,Suchita Tripathi Counsel for Respondent :- C.S.C,Rajesh Kumar Singh,Shashank Sharma Hon'ble Ajit Kumar,J.
1. Heard Sri V.K. Singh, learned Senior Advocate assisted by Sri Ramesh Chandra Tiwari, learned counsel for the petitioner in Writ - A No. 11297 of 2023. Sri Naresh Chandra Tripathi, learned Advocate appearing for 5th respondent and also petitioners' counsel in Writ - A No. 17926 of 2023 and Sri Trilok Nath Dubey, learned Advocate appearing for Committee of Management in both the petitions as well as Sri P.K. Srivastava, learned Additional Chief Standing Counsel for the State respondent.
2. These three above captioned writ petitions have been filed by Moulabi Ram, Ramyash and Mahatim Singh respectively. While Moulabi Ram is seeking a writ of certiorari for quashing the order of transfer dated 30.06.2023 in respect of Ramyash impleaded as 5th respondent, Ramyash the petitioner in his writ petition seeks a writ of certiorari quashing the order dated 20.07.2023 putting in abeyance his transfer order upon a representation dated 15.07.2023 of Moulabi Ram who is impleaded as 7th respondent in his writ petition. He further seeks a writ of mandamus to give him joining as Principal of Goverdhan Inter College, Muftiganj, Jaunpur pursuant to the transfer order dated 30.06.2023. One Mahatim Singh who is working as Assistant Teacher L.T. Grade in the Institution in question, questions the promotion of Moulabi Ram as Lecturer (Sociology) as according to him on the date of occurrence of the said vacancy i.e. 01.07.2007 he was not having experience of five years' continuous regular service in L.T. Grade and so also did not possess the academic qualification as per Appendix - A.
3. Looking to the facts pleaded by respective parties in the writ petitions and their grounds for relief claimed and as the learned Advocates appearing for respective parties agree, in my considered view also the controversy between Moulabi Ram and Ramyash is required to be decided in the first instance. The transfer order of Ramyash is under challenge in the petition of Moulabi Ram and there is a prayer for mandamus also in the writ petition of Ramyash to give him joining. The order putting in abeyance the transfer order of Ramyash can be considered while deciding these two petitions first and so far as Mahatim Singh's writ petition is concerned, it involves an entirely different issue and therefore, it can be decided separately.
4. Coming to the writ petition of Moulabi Ram, the facts pleaded are that on account of regular Principal Bhaiya Lal Yadav attaining the ate of superannuation on 31.03.2021 he was appointed as Officiating Principal of the Institution w.e.f. 01.04.2021 and his signatures were attested by the District Inspector of Schools on 13.04.2021, however, for a short period between 30.06.2022 to 20.08.2022 attestation of petitioner's signatures as officiating Principal was put in abeyance but then it was restored. It is pleaded in the writ petition that, when the post of Principal of the Institution substantively fell vacant, a requisition was sent to the District Inspector of Schools on 19.09.2020 for seeking direct recruitment by the Board as per Rule 11(1) and 11(2) of the U.P. Secondary Education Services Selection Board Rules, 1998. Later on another requisition was sent to the board through the District Inspector of Schools on 16.04.2021. The transfer order of the 5th respondent Ramyash came to be issued only on 30.06.2023. Taking the legal plea of the Government order dated 27.01.2021, wherein transfer is not permissible in the event post of the Principal has been requisitioned, present petition was filed challenging the transfer of the 5th respondent dated 30.06.2023.
5. It transpires further that while this writ petition was pending admission before this Court, petitioner Moulabi Ram approached the Additional Director of Education (Secondary), U.P. by means of representation dated 15.07.2023 to the effect that since he has challenged the transfer order and writ petition was listed for hearing on 30.07.2023 the transfer order may be stayed and the Additional Director of Education (Secondary), U.P. on his own stayed the transfer order vide order dated 20.07.2023, which led to the filing of writ petition by Ramyash being Writ - A No. 17926 of 2023 placing reliance upon the Government Order dated 14.06.2019 according to which if the requisition has not been sent for the post of Principal to the Board online then on the basis of report regarding existence of vacancy, transfers could be made.
6. The argument advanced by learned Senior Advocate appearing for petitioner Moulabi Ram is that the Government Order dated 14.06.2019 has subsequently been superseded by the Government Order dated 27.01.2021, which provides that even if the requisition has been sent to the Board no transfer can be made against such vacancy, may be the vacancy does not stand advertised on the date of consideration of application for transfer. The other argument raised is that requisition was duly sent for the post of Principal of the Institution on 21.09.2019 itself and in the event it is claimed to have not been sent by the Management, the requisition was again sent on 16.04.2021 for the second time, which the State in its instruction given by the District Inspector of Schools on 25.11.2023 has admitted to have received on 23.04.2021. So in any case, there was a requisition sent for appointment prior to the transfer order dated 30.06.2023 and thus, according to him, transfer was bad.
7. To justify the requisition sent on 16.04.2021 under the signatures of the Manager upon prescribed form and with details, it is contended that the offline requisitions were being entertained by the District Inspector of Schools and in this regard a letter was issued by the office of District Inspector of Schools on 19.08.2020 to all the Managers and Principals of the recognized and aided Higher Secondary and Intermediate Schools for sending offline applications in triplicate within a week. It is contended also that no letter was received in the school/ college for sending requisition online.
8. Per contra, Sri N.C. Tripathi, learned Advocate appearing for 4th respondent Ramyash and petitioner in Writ - A No. 17926 of 2023 contended that the Additional Director of Education (Secondary) had written a letter to all the District Inspector of Schools (first and second) on 03.03.2020 that requisition should be made qua available vacancy on a prescribed format by 15.03.2020 as the exercise was to be undertaken to process transfer applications in terms of regulation 55 to 61 of Chapter III (as amended) of Intermediate Education Act, 1921. The seven point directives were appended to this letter and therefore, the requisition was to be sent meeting all the seven points by the Manager and not by the Principal of the Institution. So according to him the requisition sent by the Principal of the Institution on 19.09.2020 as is brought on record, was neither by the competent authority namely the Manager of the Institution in terms of Rule 11 of 1998 Rules, nor was upon prescribed format issued by the Additional Director of Education.
9. In so far as the second requisition sent by the Manager on 16.04.2021 received in the office of District Inspector of Schools on 23.04.2021 is concerned, it was argued that this requisition offline was not permissible in law for the reason that the Secretary of U.P. Secondary Education Services Selection Board, Prayagraj had already written letter on 02.12.2021 to all the District Inspector of Schools of Uttar Pradesh to direct that Institution to upload their respective requisitions online between 03.12.2021 and 17.12.2021 when the website would remain open and available.
10. According to him this letter was further circulated by the District Inspector of Schools to the Managers of the recognized and aided Institutions and therefore, offline requisition was not entertainable. It was submitted that according to the rules as applicable to the Secondary Education Services Selection Board, it can adopt mode and methodology to invite and entertain applications, inasmuch as, the amended regulations also provided for entertaining online transfer applications to be registered. In support of the transfer order meeting the conditions as prescribed under the relevant regulations, Sri Tripathi submitted that after obtaining the report from the District Inspector of Schools regarding existence of substantive vacancy in the Institution in question that application of Ramyash for transfer came to be expedited and his name got enlisted in the combined list of transfers that was issued on 30.06.2023. Sri Tripathi further argued that merely because petitioner Moulabi Ram had filed a writ petition before this Court, it would not have changed the circumstances either, in the absence of any interim order in the writ petition filed by Moulabi Ram. The Additional Director of Education (Secondary) exceeded his authority in putting in abeyance the transfer order of the petitioner.
11. Having heard learned counsel for the respective parties and their arguments raised across the bar, the legal issue that arises for consideration before this Court is two fold:
(a) whether the two requisitions made by the Principal and Manager of the Committee of Management of the Institution namely Goverdhan Inter College, Muftiganj, Jaunpur were valid requisitions within the meaning and scope of Rule 11 of 1998 Rules; and
(b) whether in the event of requisitions sent to the Board through proper channel for the post of Principal of the Institution, the transfer can still be made against such vacancy taking aid to the regulations 59 to 61 of Chapter III of the Intermediate Education Act, 1921.
12. In order to appreciate the arguments of respective parties as to the first point, I find it more appropriate to go first through the rules qua determination and notification of vacancies as prescribed under rule 11 of 1998 Rules. For ready reference rule 11 is reproduced hereunder:
"11. Determination and notification of vacancies. - (1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, to the Board in the manner hereinafter provided. (2) (a) The statement of vacancies for each category of posts to be filled in 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 quadruplicate, in the pro forma given in Appendix "A" by the Management to 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 subjectwise in respect of the vacancies of lecturer grade, and group wise in respect of vacancies of Trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director :
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment : Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July 25, 1998. Explanation. - For the purposes of this sub-rule the word 'groupwise' in respect of tine Trained graduates grade means in accordance with the following groups, namely :
(a) Language This group consists of the subjects of Hindi, Sanskrit, Urdu, Persian and Arabic;
(b) Science This group consists of the subjects of Science and Mathematics;
(c) Art and Craft
(d) Music
(e) Agriculture
(f) Horne Science
(g) Physical Education
(h) General This group consists of the subjects not covered in any of the foregoing groups.
(b) With regard to the post of Principal or Headmaster, the Management shall also forward the names of two senior most teachers, along with copies of their service records (including character rolls) and such other records or particulars as the Board may require, from time to time.
Explanation. - For the purpose of this sub-rule "senior-most teacher" means the senior-most teacher in tine post of the highest grade in tine institution, irrespective of total service put in the institution.
(3) If, after the vacancies have been notified under sub-rule (2), any vacancy in the post of a teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send it to the Board.
(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-rule. They vacancies to the Board under this sub-role shall be deemed to be notified by the Management of such institution."
(emphasis added)
13. Upon bare reading of aforesaid provisions, I find that sub rule (1) of Rule 11 permits notification of vacancies to the Board through the District Inspector of Schools in the manner provided for. The manner is given in sub rule (2) of Rule 11 of the Rules, 1998, according to which the vacancies that are likely to arise due to retirement on the last day of the year of recruitment shall also be sent to the District Inspector of Schools by July 15 of the year of recruitment and then the District Inspector of Schools after due verification from the records of his office shall prepare a consolidated statement of vacancies subject wise and group wise of Lecturers and TGT as the case may be and then forward the same to the Board by 31st of July with a copy thereof to the Joint Director of Education. So in any case, the determination of vacancy under Rule 10 read with Rule 11(1) and (2) by 15th July all the vacancies that are likely to occur till 30th June next year would be sent to the District Inspector of Schools on a proforma prescribed under Appendix - A and that too in triplicate. So the duty is cast upon the Management to determine the vacancies and forward the same and not upon the Principal of the Institution. The second thing that bornes out is that the vacancies falling vacant in the year of recruitment by 30th June next also shall have to be requisitioned and that too on format given in Appendix - A of Intermediate Education Act, 1921.
14. It is also well settled law that when a thing is required to be done in a particular manner, that thing should be done in that manner alone. So, if the statutory rules provide for intimating a vacancy or in other words requisitioning a vacancy for direct recruitment by a particular authority then it should be done by that particular authority only under his signatures and still further, it should be on the same format/ proforma as prescribed for. In the case of Tata Chemical Ltd. v. Commissioner of Customs (2015) 11 SCC 628, it has been settled by the Hon'ble Supreme Court that "if the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of the law at all." This has been reiterated by Supreme Court in the case of Krishna Rai v Banaras Hindu University (2022) 8 SCC 713).
15. Testing the first requisition claimed by petitioner Moulabi Ram sent on 19.09.2020, I find that it does not bear signatures of Manager at all. It had been sent upon a common office pad of the Principal and Manager of Goverdhan Inter College, Muftiganj, Jaunpur but bore the signature and seal of Principal only and the proforma annexed as per Appendix - A, did not bear any signature either of the Principal or the Manager and so also the certificates appended thereto regarding vacancy falling vacant on 31.03.2021 and that vacancy was not disputed one, had been signed by the Principal only. Further, I do not find there to be any compliance of the provisions for sending two names of senior most teachers of the Institution along with the requisition and still further, I do not find there to be any compliance of the letter issued by the Additional Director of Education (Secondary), U.P. dated 03.03.2020. While it could be said that the letter dated 03.03.2020 was sent to the District Inspector of Schools and was not even marked to the Management but I do not find the requisition to be valid enough on the score of the prescribed procedure and method given under Rule 11 of the 1998 Rules.
16. Coming to the second requisition claimed to have been sent by the Manager of the Institution on 16.04.2021 even though details appended thereto have not been annexed but it will be taken to have been received in the office of the District Inspector of Schools on 23.04.2021 as per the admission made in the instructions given by District Inspector of Schools dated 25.11.2023. The requisition this time of course bore the signatures of both the Manager and Principal of the Institution. So while the requisition sent on 19.09.2020 cannot be a valid requisition being singed by the Principal only, second requisition sent on 16.04.2021 will be taken to have been sent by the competent authority namely the Manager. However, the issue that remains to be resolved in order to hold requisition dated 16.04.2021 to be valid, as to whether the Manger was justified in sending the requisition offline instead online between 03.12.2021 to 12.12.2021 as per the directives issued on 02.12.2021 to all the District Inspector of Schools of Uttar Pradesh. Rule 11(2) clearly stipulates that the vacancies have to be intimated to District Inspector of Schools who after due verification shall send the same to the Board but the requisition has to be sent by 15th July. Since vacancy in question was to fall vacant on 31.03.2021, therefore, vacancy was to be sent by 15.07.2020, as 1st July 2020 to 30th June 2021 will be the recruitment year. As the recruitment year starts from 1st July 2020 to the following 30th June 2021, the process had started to consider applications for transfer of available vacancies in the relevant financial year if available vacancy was neither requisitioned, nor advertised. However, consideration had yet not started qua application of transfer and any process if was under way, validity of a transfer is to be seen on the date of its issuance. Admittedly transfer order was issued on 30.06.2023 and so it is to be seen as to whether requisition had been made of the post in question prior to this date. District Inspector of Schools has admitted to have received requisition on 23.04.2021, a date much prior to transfer order. However, now the legal issue is to be answered as to whether requisition sent on 16.04.2021 received by District Inspector of Schools on 23.04.2021 was a valid requisition having been sent off line. The letter of the District Inspector of Schools dated 19.08.2020 acknowledges off line requisition provided thus:
"प्रेषक, जिला विद्यालय निरीक्षक, जौनपुर।
सेवा में, समस्त प्रबन्धक / प्रधानाचार्य अशासकीय सहायता प्राप्त / उ०मा०वि०/ इण्टर कालेज जौनपुर।
पत्रांक / 3141-42 /2020-21 दिनांक 19-08-2020 विषय- दिनांक 31.03.2021 तक सेवानिवृत्त हो रहे प्रधानाचार्य / प्रवक्ता / स०अ० के रिक्त पद का अधियाचन प्रेषण के सम्बन्ध में। महोदय उपर्युक्त विषयक के सम्बन्ध में अवगत कराना है कि आपके विद्यालय में दिनांक 31.03.2021 तक सेवानिवृत्त हो रहे प्रधानाचार्य / प्रवक्ता/ स०अ० के रिक्त पद का अधियाचन चयनबोर्ड को प्रेषित किया जाना है जिसके लिए पूर्व में आप द्वारा माह अक्टूबर 2019 में अॉनलाइन अधियाचन प्रेषित किया गया था के अतिरिक्त 31 मार्च 2021 को सेवानिवृत्त होने वाले प्रधानाचार्य / प्रवक्ता / स०अ० का विषयवार / आरक्षणवार अधियाचन आफलाइन माध्यम से किस पद से रिक्त पद है का स्पष्ट उल्लेख करते हुए (तीन प्रतियो में) अधोहस्ताक्षरी कार्यालय में एक सप्ताह के मध्य उपलब्ध कराना सुनिश्चित करें। प्रकरण अतिमहत्वपूर्ण एवं समयबद्ध है। इसमें किसी भी प्रकार का विलम्ब अपेक्षित नहीं है।
भवदीय ह० अप० (प्रवीण मणि त्रिपाठी) जिला विद्यालय निरीक्षक जौनपुर।
पृ०सं०/ /2020-21 दिनांकः प्रतिलिपि-संयुक्त शिक्षा निदेशक वाराणसी मण्डल वाराणसी की सेवा में सूचनार्थ प्रेषित।
ह० अप० जिला विद्यालय निरीक्षक जौनपुर।"
17. It is true that Board required later on online requisition, but merely because a requisition had been sent to District Inspector of Schools off line would not have rendered it null and void. Rules, 1998 do not provide for any mode of sending requisition but acknowledge its route via office of District Inspector of Schools. The District Inspector of Schools was a responsible authority and it was his duty to send it back to the Institution same day for online sending or ought to have sent it himself using his good offices. Such intimation if was kept unforwarded by the District Inspector of Schools, it could not be presumed that there was no requisition to justify action to fill up the vacancy by transfer after receipt of requisition in the office of District Inspector of Schools on 23.04.2021.
18. Offline requisition of a vacancy for direct recruitment cannot be a ground itself to hold that Board has no authority to advertise such vacancy. It is only a procedural aspect of a matter and substantive power do not get adversely affected or diluted for such irregularity. Procedural irregularities are curable until it is established that someone's rights are adversely affected to cause him substantial injustice or may result in miscarriage of justice. But for this hyper technical stand that requisition was sent but only offline, otherwise, had it been online as on 16.04.2021, no such transfer could have been made on 30.06.2023. It was respondent education authority's own stand that online requisition of intimation was not possible due to server problem and so offline requisitions were invited. Transfer is not a vested right as such. It depends upon many factors and availability of vacancy at a desired place is a sine qua non. Requisition sent through the District Inspector of Schools was not such a serious irregularity that transfer should be permitted to deny the claim of senior teacher participating in the selection by way of direct recruitment as an internal candidate. Continuance of such a teacher as an Officiating Principal would not cause such a serious loss of opportunity to the transferee Principal that if his transfer is not sustained any miscarriage of justice would take place.
19. The Government Order dated 13.08.2021 is to be read in supersession to the Government Order dated 27.01.2020. The earlier Government Order dated 27.01.2020 vide clause 12 very much provided that "a transfer application can be filed in respect of a vacancy which may have been requisitioned but not advertised. 12- अध्यापक द्वारा जिस विषय के पद के प्रति स्थानान्तरण हेतु आवेदन किया गया है वह पद उत्तर प्रदेश माध्यमिक शिक्षा सेवा चयन बोर्ड अथवा उत्तर प्रदेश शिक्षा सेवा चयन आयोग द्वारा विज्ञापित नहीं होना चाहिए किन्तु अधियाचित हो सकता है। " Whereas, the Government Order dated 13.08.2021 provided that no transfer is to be made against the post already requisitioned and if it is found that the transfer has taken place in respect of a vacancy already requisitioned, such transfer would be taken to be automatically cancelled. Clause 4 of the Government Order dated 13.08.2021 runs as under:
"4- अधियाचित पदों के सापेक्ष स्थानान्तरण नहीं किया जाना है, अतः स्थानान्तरण आदेश निर्गत होने के उपरान्त अधियाचित पद के सापेक्ष स्थानान्तरण होने का संज्ञान होने पर स्थानान्तरण आदेश स्वतः निरस्त समझा जायेगा।"
20. One must always bear in mind that appointment with it entails a number of rights and duties. Rights are to receive pay perquisites, periodical promotional pay scales and other allowance and duties are to carry out work entrusted diligently and honestly. Transfer is incidence of service where posts are subject to routine transfers but where cadre is Institution wise or establishment wise, it all depends upon available vacancies and agreement of establishment where transfer is sought. Such rights are recognized but are not absolute and comparing the rights of petitioner Moulabi Ram with that of Ram Yash, equity finds favour with Moulabi Ram. Petitioner Ramyash is a settled Principal of an Institution and may get an opportunity of transfer to another Institution of choice in future but if vacancy of institution in question is not subjected to recruitment, petitioner Moulabi Ram will suffer more loss. So basically, while I hold that requisition was sent in respect of the vacancy in question on 16.04.2021 was valid and so also much prior to the transfer list and order issued on 30.06.2023, I hold the impugned transfer order to be unsustainable and even equity favours more claim of Moulabi Ram than that of Ramyash.
21. In view of the above, writ petition of Moulabi Ram being Writ - A No. 11279 of 2023 succeeds and is allowed. The order of transfer dated 30.06.2023 issued in favour of respondent Ramyash is hereby quashed. In the circumstances writ petition of Ramyash being Writ - A No. 17926 of 2023 is hereby dismissed. Writ petition No. 7516 of 2023 filed by Mahatim Singh is de-tagged and is directed to be listed separately before appropriate bench.
Order Date :- 05.3.2024 IrfanUddin