Allahabad High Court
Birendra Kumar Srivastava vs State Of U.P. & 7 Others on 22 September, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 18 Case :- WRIT - A No. - 56899 of 2015 Petitioner :- Birendra Kumar Srivastava Respondent :- State Of U.P. & 7 Others Counsel for Petitioner :- L.K. Dwivedi Counsel for Respondent :- C.S.C., Ashok Kumar Dwivedi, J.P. Singh, N.N. Singh, Shiv Nath Singh Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner challenging the order dated 04.06.2015 passed by the Additional Director of Secondary Education and the order dated 23.09.2015 again passed by the same authority and the order dated 29.09.2015 passed by the District Inspector of Schools, Deoria. It also prays for a direction in the nature of mandamus commanding the respondents not to interfere in the functioning of the petitioner as officiating Principal of the Institution.
2. Brief facts of the case are that there is one Secondary Institution, namely Janta Inter College, Rampur Karkhana, district Deoria governed by the U.P. Intermediate Education Act 1921, the Payment of Salaries Act, 1971 and UP Secondary Education Service Selection Board Act, 1982. One post of Principal fell vacant sometime in the year 2009-2010 in the said Institution and a requisition was sent to the Service Selection Board and the Board sent the name of one Shri Prabhat Kumar Jha, Hostel Superintendent, Government Inter College, Varanasi after due selection, as Principal of the College on 18.03.2010. The District Inspector of Schools, Deoria thereafter, issued an order dated 06.05.2010 asking respondent No. 6 herein, the Manager of the Institution to ensure joining of Prabhat Kumar Jha, the regularly selected candidate.
3. At this point of time, the senior most lecturer in the college, Shri Hari Shankar Pandey was officiating as Principal and he challenged the selection of Prabhat Kumar Jha by filing Writ Petition No. 25554 of 2010. Because of the litigation pending in this Court, Prabhat Kumar Jha did not join and Hari Shankar Pandey continued to officiate on the post of Principal till his superannuation on 30.06.2014. Before he was due to retire, the Management by its letter dated 20.03.2014 sent a requisition to the Office of the District Inspector of Schools for forwarding it to the Selection Board in quadruplicate in the proforma given in Appendix 'A'.
4. After the retirement of Hari Shankar Pandey, the petitioner being the senior most lecturer of the Institution was asked to function as officiating Principal and his signature was provisionally approved on 04.10.2014 by the District Inspector of Schools under section 18 (1) of the UP Secondary Education Service Selection Board Act, 1982 as amended in 2001.
5. It is the case of the petitioner that the Management after sending requisition for the post in the prescribed proforma quietly agreed to the transfer of one Kamlesh Pratap Singh, Principal Rashtriya Inter College, District Siddharth Nagar as Principal of the Institution and the Additional Director Secondary Education passed orders thereon transferring respondent No. 7, Kamlesh Pratap Singh to the Institution on 04.06.2015. The Management of the Institution allowed respondent No. 7 to join and he joined on 20.06.2015.
6. Aggrieved by the action of the Committee of Management, the petitioner moved a complaint to the Additional Director Secondary Education, who by his order dated 24.06.2015 stayed the earlier transfer order dated 26.05.2015 and instituted an inquiry. This stay was to operate till the completion of the inquiry. However, the District Inspector of Schools ignored the order dated 24.06.2015 passed by the Additional Director Basic Education and the order dated 03.07.2015 passed by the Joint Director, VIIth Region Gorakhpur and verified the signatures of respondent No. 7, who continued to function as Principal.
7. Aggrieved by the sanction, the petitioner approached this Court by filing Writ Petition No. 41278 of 2015, which was disposed of by this Court on 05.08.2015 with a direction to the Additional Director Secondary Education to consider and decide the dispute in view of the law settled by a Full Bench in the case of Prashant Kumar Katiyar vs State of U.P. and others reported in 2013 (1) ADJ 523.
8. The Additional Director Basic Education gave opportunity of hearing to the petitioner and to the respondent No. 7, Kamlesh Pratap Singh as well as the Committee of Management. The Committee of Management had submitted that although it had sent the requisition to the office of the District Inspector of Schools on 20.03.2014, but it had withdrawn such requisition on 28.06.2014 in view of the proposed transfer of respondent No. 7. The Committee of Management also stated that the Board was forwarded the requisition by the District Inspector of Schools on 05.07.2014, but without mentioning any details of the determination of vacancies. The Committee of Management submitted that after transfer of respondent No. 7 was approved by the Additional Director Secondary Education on 04.06.2015, the Committee had allowed him to join on 20.06.2015. It was also submitted that till the date of decision relating to transfer of respondent No. 7 no advertisement had been issued in respect of vacancy for the post of Principal by the Selection Board.
9. The District Inspector of Schools in his report submitted that the Committee of Management had sent a requisition on 20.03.2014, but it had taken it back on 27.06.2014 in view of the proposed transfer of respondent No. 7. The District Inspector of Schools had sent information regarding vacancies in 33 Institutions of the District for filling up through a regular selection to the Board on 05.07.2014, but the post had not been advertised by the Board till the transfer of respondent No. 7 was approved by the Additional Director Secondary Education.
10. The Additional Director, Secondary Education thereafter decided the matter against the petitioner and upheld the transfer of respondent No. 7 made by his order dated 04.06.2015. He agreed with the contention of respondent No. 7, the Committee of Management and of the District Inspector of Schools that the requisition sent by the Committee of Management was not acted upon and in fact the Selection Board itself had returned the requisition by the letter dated 01.07.2015 saying that only a list of 33 Institutions had been sent by the District Inspector of Schools by his letter dated 15.07.2014. No other papers, e.g., the requisition in proforma 'A' had been sent, and therefore, the Selection Board found it difficult to determine the nature of vacancy and notify the same through advertisement.
11. The Additional Director, Secondary Education has in the order impugned dated 23.09.2015 found that not only the Committee of Management had taken back its requisition made on 20.03.2014 by its letter dated 27.06.2014, the information sent by the District Inspector of Schools on 05.07.2014 to the Board being incomplete was also returned by the Selection Board on 01.07.2015. Till the date of decision, the Board had not issued any advertisement advertising the post for filling up by regular selection. On the other hand in terms of the provisions under the Regulations attached to the Intermediate Education Act, the proposal for transfer of respondent No. 7 was forwarded through competent authority and after agreement of both the Committees of Management of the Schools, the transfer of respondent No. 7 was effected on 04.06.2015 and he had joined the post on 20.06.2015. In view of the fact situation as mentioned in the order impugned, the Additional Director Secondary Education came to the conclusion that transfer of respondent No. 7 had been regularly effected and therefore, rejected the claim of petitioner, who is officiating Principal of the Institution to continue as such till regular selection by the Board.
12. Mr Ashok Khare, learned Senior Advocate assisted by Mr L.K. Dwivedi, learned counsel appearing for the petitioner has argued that while approving transfer of respondent No. 7, the petitioner's right to be considered for the post of Principal, along with selected candidate from the Board under the provisions of the Rules of 1998 had been defeated.
13. The petitioner being the senior most Lecturer was entitled to participate in the fresh selection made by the Selection Board and by the impugned transfer order of Kamlesh Pratap Singh, the petitioner has denied his right to participate in the selection. The petitioner is fully qualified for the post of Principal and there is no adverse material in the service record of the petitioner to dis-entitle him to participate in the selection held by the Board.
14. Learned Senior Advocate appearing for the petitioner has argued that the report of the District Inspector of Schools that the requisition sent by the Management on 20.03.2014 had been taken back by it through its letter dated 27.06.2014 and also the report of the District Inspector of Schools that the Selection Board by its letter dated 01.07.2015 had returned the requisition were not correct as there is no permission of the Selection Board by letter dated 01.07.2015.
15. Learned counsel for the petitioner has relied upon paragraphs 43 to 45 of Full Bench decision of this Court in Prashant Kumar Katiyar (supra), wherein it has been held that once requisition is sent, then the vacancy cannot be filled up by way of transfer. A copy of the judgment rendered by the Full Bench had been sent along with representation of the petitioner to the Additional Director Secondary Education and in the judgment and order of this Court dated 05.08.2015, while referring the dispute to the Additional Director of Education for decision, specific reference was made to of the Full Bench decision in Prashant Kumar Katiya (supra), but it appears that it has not been taken note of by the Additional Director deliberately.
16. It has been argued that the transfer order of respondent No. 7 was obtained by concealment of fact, and therefore, liable to be set aside.
17. Mr P.N. Saxena, learned Senior Advocate assisted by Mr J.P. Singh, learned counsel appearing for respondent No. 7-Kamlesh Pratap Singh, has argued on the basis of the letter of the District Inspector of Schools dated 05.07.2014 to say that bare perusal of the said letter would show that only a list of 33 Institutions, where there was a vacancy of Principal in the District had been sent and the Proforma "A" as prescribed under the Rules of 1998 was not filled up, and this information alone sent by the office of the District Inspector of Schools could be said to be a proper requisition in terms of the Rules.
18. Mr P.N. Saxena, learned Senior Advocate has pointed out that U.P. Secondary Education Services Selection Board Rules, 1998 (herein-after referred to as Rules of 1998), more particularly Rule 11 thereof a relevant extract of which reads as under:
"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 proforma 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 subject-wise 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: ..................."
"..............(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 teachers' mean the senior-most teachers in the post of the highest grade in the 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. The vacancies to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.
19. It has been argued by Mr P.N. Saxena, learned Senior Advocate that the vacancy of Principal was due to arise on 30.06.2014, and therefore, the recruitment year would be from 01.07.2013 to 30.06.2014. The vacancy arising out of retirement of officiating Principal was known to the Management on 01.07.2013 itself. The requisitions had to be sent by 15.07.2013, but the Management sent the requisition with considerable delay only on 20.03.2014. Moreover under section 11 (2) (b) along with prescribed proforma given in Appendix "A" the names of two senior most teachers and copy of their Service Records including Character Rolls and such other records or particulars as the Board may thereafter require had to be sent by the Management.
20. A bare perusal of the proforma "A" said to have been sent in quadruplicate by the Management shows that it does not mention the names of two senior most teachers of the Institutions, nor does it mention that the Service Records and other details of these teachers are being enclosed along with the proforma to the Selection Board. Hence, it cannot be said that the requisition sent to the Board by the Committee of Management was in order and as per the procedure prescribed under the Rules.
21. Moreover, a perusal of the letter of the District Inspector of Schools dated 05.07.2014, by which it has been alleged that requisition was sent to the Board would also show that it mentions only the list of Institutions and vacancies arisen for the recruitment year 2013-14. Thus, requisition was to be sent by the District Inspector of Schools by 31.07.2013, for the Board to take cognizance thereof and issue advertisement thereafter. Instead, the requisition/information was forwarded by the District Inspector of Schools only on 05.07.2014 i.e. after the recruitment year 2013-14 had ended.
22. Thus, it was rightly not noticed by the Selection Board and the post was not advertised as is evident from the information supplied on the application under Right to Information Act to the petitioner himself by the Board, through its letter dated 01.10.2015. In the letter dated 01.10.2015, the Board had acknowledged that it had received the letter of the District Inspector of Schools dated 05.07.2014, but till the date of issuance of the said letter in October, 2015, it had not advertised the post for selection. Since, advertisement had not been made by the Board, the selection could not be said to have started only by sending of requisition by the Committee of Management and therefore, the Educational Authorities had rightly considered the request for transfer of respondent No. 7 to the Institution in question and passed the order dated 04.06.2015. In pursuance of the order dated 04.06.2015, respondent No. 7 joined the Institution and was functioning as Principal since 20.06.2015.
23. It is also the contention of Mr P.N. Saxena that respondent No. 7 was a regularly selected Principal by the Board, but he was selected for Rastriya Inter College, Turkauliya, district Sidharth Nagar and he was entitled to seek transfer on the vacant post of Principal, which had not properly been requisitioned by the Institution in question.
24. Mr Shiv Nath Singh, learned counsel appearing for the Selection Board has pointed out from the letter dated 01.10.2015 of the Selection Board filed along with supplementary affidavit by the petitioner himself that the vacancy arising from the retirement of senior most lecturer/officiating Principal, Hari Shankar Pandey on 01.07.2014 was informed to the Board by the District Inspector of Schools only by his letter dated 05.07.2014, and the Selection Board had thereafter referred the matter for clarification to the District Inspector of Schools, Deoria as such no advertisement was made of the post till the issuance of the letter dated 01.10.2015, and it could be said that the selection process had started.
25. Learned Standing Counsel for the State-respondents has relied upon the counter affidavit of the District Inspector of Schools filed on 22.01.2016, wherein the District Inspector of Schools has pointed out that officiating Principal of the Institution, Hari Shankar Pandey retired on 30.06.2014, and Birendra Kumar Srivastava-petitioner was senior most teacher and his signature was verified as officiating Principal on 23.07.2014. Much before the vacancy had occurred, the requisition was sent by the Institution on 20.03.2014 and the District Inspector of Schools has forwarded the information to the Board by his letter dated 04.07.2014. In the meantime, an application for transfer of respondent No. 7 was received, which was recommended by the Manager of the Institution by his letter dated 01.01.2015 and the transfer was actually effected on 04.06.2015. It has also been reiterated that respondent No. 7 is also a duly selected candidate in earlier selection held in 2010 by the Service Selection Board.
26. Mr Ashok Khare, learned Senior Advocate, in rejoinder has pointed out to this Court various paragraphs of judgment rendered by the Full Bench of this Court in the case of Prashant Kumar Katiyar (supra) and also the observations made by the Division Bench of this Court in Special Appeal No. 311 of 2016 (Hari Pal Singh vs State of U.P.) reported in 2016 (6) ADJ 203.
27. It has been contended by Mr Ashok Khare, learned Senior Advocate that selection process does not start only with the issuance of advertisement in the case of selection for teachers and Principal of Secondary Institutions. The 1998 Rules governed the determination of vacancy by the Committee of Management and its information is to be sent thereafter to the District Inspector of Schools, who would then forward the same to the Selection Board within the time limit prescribed under the said Rules.
28. The case of transfer/exchange of teachers has been dealt with specifically in paragraphs 43 to 45 of the judgment of the Full Bench of this Court and are being quoted herein-below:
"43. Taking up the case of transfer, which can be done unilaterally and even bilaterally by exchange of teachers, has to be done on resolutions passed by the two institutions that are to allow such appointment by way of transfer. If there is an application of any such teacher seeking appointment by way of transfer the same has to be forwarded to the competent authority as per the regulations meant for such appointment under Chapter III of the U.P. Intermediate Education Act, 1921 read with provisio to Section 16 of the 1982 Act. This exercise, if any, therefore has to be concluded prior to the determination and intimation of the vacancy to the Board as per the calendar fixed under the rules. The management or a teacher cannot be permitted to make a request for allowing such transfer after the determination of the vacancies and the initiation of the process by the Board. The choice to fill up a vacancy by way of transfer therefore has to be exercised reasonably and its determination has to be finalized prior to the sending of the intimation and not thereafter. This will prevent any confusion or future complication in the process of selection that has to be undertaken by the Board. The authority of the Board to proceed with the selection therefore should not be disturbed by such intervening claims relating to transfer.
44. The provisions for appointment of a teacher by way of transfer from one institution to another is authorised under the proviso to Section 16 of the 1982 Act. Transfer has been made permissible in view of the provisions of the Intermediate Education Act, 1921. Section 16-G (c) of the 1921 Act authorises appointment by way of transfers for which regulations have been framed under Chapter III, Regulations 55 to 61. The explanation to regulation 61 also indicates that the transfer shall be permitted from one recognised aided institution to another recognised aided institution or from one recognised unaided institution to another recognised unaided institution. The vacancy on account of such transfer if occurring shall be filled up, in case it is reserved, from the same category of a teacher.
45. We therefore find ourselves in full agreement with the view expressed by the division bench in cases relating to transfer as reasoned out in the decision of Smt. Anita Sinha Vs. State of U.P. and others, 2009 (2) AWC 1384. There also the vacancy had been notified to the Board and was then advertised. In between a teacher applied for transfer and simultaneously the Board proceeded to hold selection for the same vacancy. The result of the empanelled candidate was declared but a few days before that, the transferee teacher got an order approving her transfer and joined on the post. She challenged the selections but her writ petition before the learned Single Judge failed which was upheld in the division bench judgment noted hereinabove. Para 7 of the said judgment gives extensive reasons and we approve of the same. The only clarification in the said judgment that we like to put on record is that appointment by way of transfer can be made against a vacant sanctioned post or else in cases of unilateral transfer, the same might result in increase of sanctioned strength of teachers which cannot be permitted except with the approval of the Director as per Section 9 of the U.P. High School and Inter Colleges (Payment of Salaries of Teachers and Other Employees) Act 1971 read with Rule 19 of the 1993 Rules framed thereunder for aided institutions and similar terms expressed in the recognition order by the competent authority for unaided institutions. " (emphasis supplied).
29. It has further been argued by Mr Ashok Khare, learned Senior Advocate that the calculation of posts to be filled up by selection by the Board has to be made for the year of recruitment and to be sent latest by 31st of July of the year of recruitment. Thus, any claim thereafter having arisen for transfer, will have to wait for a vacancy to occur thereafter.
30. The year of recruitment has been defined and in this case being July 2013 to June 2014. The calculations regarding vacancies and their information/requisition to the Board by the Committee of Management and the District Inspector of Schools thereafter had to be undertaken by 31.07.2013 itself. The claim of transfer of respondent No. 7 had arisen on his application being received in the office of the District Inspector of Schools, Deoria only on 01.01.2015. It was not open for the Committee of Management of the Institution in question to approve the proposal for transfer of respondent No. 7 after the calculations of vacancies had been done from the date the vacancy had arisen in the recruitment year concerned.
31. Mr Ashok Khare, learned Senior Advocate has relied upon the law as elucidated further in the case of Hari Pal Singh by the Division Bench of this Court.
32. He has relied upon the observations made in paragraphs 14 to 17 of the judgment in Hari Pal Singh vs State of U.P., reported in 2016 (6) AllLJ 203, which are being quoted herein-below:
"14. On a conspectus of the aforesaid facts and the arguments advanced, the issue which deserves determination is as to what is the stage up to which the appointment by way of transfer can be permitted. The learned Single Judge has held that since the process of selection begins with the advertisement and since the advertisement has not yet been made by the U.P. Secondary Education Services Selection Board, therefore, the Full Bench according to the learned Single Judge permits the consideration of appointment by way of transfer up to the stage of advertisement. This is being countered by the learned counsel for the appellant contending that the learned Single Judge even though has extracted certain paragraphs of the judgment of the Full Bench in the case of Prashant Kumar Katiyar (supra), but has omitted to consider the impact of what has been stated by the Full Bench after noticing Rules 10, 11 and 12 of the 1998 Rules in paragraphs 25 to 41 of the judgment read as a whole.
15. On a consideration of the ratio of the Full Bench in the case of Prashant Kumar Katiyar (supra), what we find is that the learned Single Judge in the impugned decision has extracted paragraphs 36, 37 and 38 of the said judgment and thereafter, it crosses over to paragraph - 43 of the judgment and has then reconciled it with the judgments in the cases of Asha Singh vs. State of U.P. And others [2007 (3) UPLBEC 2497] and Smt. Amita Sinha vs. State of U.P. And others [2008 (4) ESC 2799] to conclude that the appointment through transfer would be legally permissible up to the stage of advertisement only.
16. We are unable to uphold the said view of the learned Single Judge, inasmuch as it appears that the learned Single Judge has concluded that the process of direct recruitment starts with the issuance of advertisement and in such a situation, prior to that, the process of appointment by way of transfer would be permissible. The ratio of the Full Bench in the case of Prashant Kumar Katiyar (supra) in paragraphs 38, 39, 40 and 41 has clearly concluded that the power of the Management or the District Inspector of Schools or even the authority which is to give effect to any transfer cannot proceed to adopt any other mode of recruitment after the steps taken for determination and notification as per Rule 11 of the 1998 Rules. It has also been held that the alteration of any such determination is not permissible and cannot be reversed. This has been reiterated in paragraph - 39 of the decision. Not only this in paragraph - 40, the Full Bench also obliges the Committee and the District Inspector of Schools to fulfill their obligations as per Rule 11 for determination and intimation of vacancies. The ratio therefore of the Full Bench read with the aforesaid Rules is clearly to the effect that the authorities, who are obliged to fill up the vacancies occurring in the year of recruitment, have to mandatorily perform their function of determining and notifying the vacancy. The failure by the Management or the District Inspector of Schools to act as per Rule 11 of the 1998 Rules would therefore not generate a right in favour of any person to seek transfer or even in the Committee of Management to defeat the very purpose of Rule 11 of determining or intimating the vacancies to the Selection Board for direct recruitment. The Committee of Management no doubt has the right to select the mode of recruitment when it has to be filled up directly in the event it has an option from a candidate seeking transfer. However, this conscious decision of the Committee of Management to adopt a particular mode has to be taken within the time frame as provided under Rule 11 of the 1998 Rules. If the Committee of Management is allowed to violate the time schedule, then it would be allowing the Committee of Management to have a free play to choose to determine it's mode of recruitment at any time which is not the purpose of the Rules. For that matter, under Sub-Rule (4) of Rule 11, the District Inspector of Schools is also obliged to take a decision as per the specifications of the time schedule provided in Rule 11 itself for the Committee as well as for the District Inspector of Schools. This compliance has to be adhered to keeping in view the year of recruitment and also the eligibility of the candidate including his qualification as on the first day of the year of recruitment which would be the 1st of July of the year in question. However, any failure on their part would not extend the right of the Management to any stage beyond that for adopting the mode of appointment by way of transfer. It is this aspect which has been insisted upon by the Full Bench in the paragraphs referred to here-in-above and which has not been noticed by the learned Single Judge in the impugned judgment. Consequently, we are of the opinion that the learned Singe Judge has not correctly appreciated the ratio of the Full Bench and has therefore arrived at an incorrect conclusion that the option is open up to the stage of advertisement for making appointment by way of transfer. The impugned judgment therefore cannot be sustained to that extent.
17. There is yet another aspect which deserves to be explained, namely, that the process of determination and intimation of vacancy for direct recruitment is a distinct process under Rule 11 of the 1998 Rules. The stage of advertisement comes after the request is received by the Board. The stage of determination and notification of the vacancy is therefore a unique methodology in this process of selection which is a stage prior to advertisement. It is for this reason that the judgment in the case of Prashant Kumar Katiyar (supra), as noted above, has held that this process should not be avoided which is mandatory. Consequently, the learned Single Judge did not appreciate this distinction while applying the principles of commencement of the date of selection process on the strength of the judgments of the Supreme Court and the ratio of the judgments in the cases of Asha Singh (supra) and Smt. Amita Sinha (supra) respectively. The said logic of the initiation of the selection process has to be distinguished in the present process of recruitment where the initiation of the determination of vacancy is relevant for the purpose of choosing the mode of recruitment under the 1998 Rules. Consequently, we are of the opinion that once the determination and the notification process is either made or there is a failure on the part of the Management to do so, then the District Inspector of Schools has to perform his duty as per Rule 11 (4). Once this contingency has occurred, then the option of the mode to recruit by transfer is not available. This issue will therefore have to be taken into account by the Joint Director (Education) who would be under our orders in this appeal be now proceeding to examine the matter." (emphasis supplied)
33. With regard to failure on the part of the Commission to advertise the post, the Division Bench has clarified in paragraph 18 thus:
"18. ...............Any failure on the part of the Commission to either advertise or not proceeding with the recruitment expeditiously cannot devolve a corresponding right on any person seeking transfer or the Committee of Management to proceed to process an appointment by way of transfer on account of such a lapse. Any allowance to the Committee of Management would therefore defeat the very purpose of Rule 11 and any Committee can slip away by this method to alter it's mode of recruitment by resorting to transfer even at a later stage. The judgment of the Full Bench in the case of Prashant Kumar Katiyar (supra) has emphasized to plug all such loopholes that may be available to the Committee of Management for avoiding it's responsibility. Thus, for the purpose of invoking it's power of determination to choose the mode of direct recruitment would be limited to the Committee of Management within the period as prescribed under Rule 11 of the 1998 Rules for determination and notification of vacancies and not beyond that. The issuance of advertisement or otherwise by the Commission therefore in relation to the mode of direct recruitment will be of no avail. It is for this reason that the Full Bench in the case of Prashant Kumar Katiyar (supra) made this allowance up to the date of advertisement only in the case of compassionate appointment and not in the case of transfer." (emphasis supplied).
34. Having considered the rival submissions of the parties and also the law as settled by the Full Bench of this Court and as explained by the Division Bench thereafter in the case of Hari Pal Singh (supra) it leaves no manner of doubt that the Committee of Management in question has failed to notify the vacancy in the recruitment year concerned i.e. June, 2013 to July, 2014 by 15.07.2013. It had full knowledge that its officiating Principle Hari Shankar Pandey was due to retire on 30.06.2014. It held back the information of the vacancy till 20.03.2014. The District Inspector of Schools also failed to perform his duty as envisaged under Rule 11 (4) of the 1998 Rules. It was his duty to determine the vacancy and notify to the Board by 30.07.2013 even on failure of Committee of Management to intimate the same to him. Instead, the District Inspector of Schools, Deoria sent a letter of information to the Board only on 04.07.2014 after Hari Shankar Pandey had actually retired on 30.06.2014.
35. A perusal of the letter dated 04.07.2014, admittedly received by the Commission on 05.07.2014, shows that it contains the list of 33 Institutions where vacancies for the post of Principal had arisen on various dates. No other information was enclosed for the assistance of the Board to determin the Reserved Category of the posts, and thereafter, advertise them. The Board rightly returned the requisition and did not advertise. However, this would not create a right in favour of respondent No. 7 to seek transfer. Admittedly, his application for transfer was moved in 2014, and reached the District Inspector of Schools, Deoria only on 01.01.2015. In terms of the law settled by this Court, delay in sending of intimation/requisition to the Board and consequent delay in publication of any advertisement and holding of selection by the Selection Board would not create a right in favour of respondent No. 7 to seek his transfer.
36. As a consequence of the facts and settled position of law as aforesaid, the impugned orders dated 04.06.2015, 23.09.2015 and 29.09.2015 are liable to be set aside. Hence, the impugned orders are set aside.
37. The writ petition is allowed to this extent.
38. It is further directed that the District Inspector of Schools shall ensure that a due requisition of the post is sent as per the provision of the Rules in the proforma prescribed, to the Selection Board within two weeks from the date a certified copy of this order is received by him. The Selection Board shall thereafter ensure that the post in question is advertised, in the forthcoming selection due to be held by the Board. Till such duly selected candidate is sent by the Board, the petitioner may be allowed to continue as officiating Principal, if there is no legal impediment making him otherwise ineligible.
Order Date :- 22.09.2017 Sazia