High Court
Case Details
Court No. - 32 Case :- WRIT - A No. - 16385 of 2019 Petitioner :- Harendra Singh Kushwaha Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Shantanu Khare,Ashok Khare (Sr. Advocate) Counsel for Respondent :- C.S.C. Hon'ble Siddharth,J. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Shantanu Khare, learned counsels for the petitioner and learned Standing Counsel appearing on behalf of the respondents. This writ petition has been filed praying for quashing the order 13.09.2019 passed by Additional Director of Education (Secondary),U.P. Prayagraj, respondent no.3. Further prayer has been made for quashing the communication of the District Inspector of Schools, Kanpur Nagar, dated 22.5.2019 and also communication of Joint Director of Education, Kanpur Region, Kanpur, dated 23.5.2019. Lastly, direction has been sought against the respondent no.3 to direct transfer of petitioner as Lecturer in Education to L.P. Inter College, Kanpur Nagar and pay his regular salary month to month. The petitioner was selected in ex-serviceman category by the U.P. Secondary Education Services Selection Board for appointment on the post of Assistant Teacher in Jagatjit Inter College, Ikauna, Shravasti, by notification dated 14.7.2016. The D.I.O.S., Shravasti, issued appointment letter dated 22.11.2016 to the petitioner and he is working as Lecturer in Education in the aforesaid institution. The transfer from one privately managed recognized and aided educational institution to another such institution is permissible under the Regulations 55 to 60 of Chapter III of the Regulations framed under U.P. Intermediate Education Act as amended on 16.5.2018. The petitioner, being resident of Kanpur Nagar, where his wife is employed as Assistant Teacher and two children also living, applied for transfer from Jagatjit Inter College, Ikauna, Shravasti, to L.P. Inter College, Mall Road, Kanpur Nagar, which is also recognized and aided institution. The Committee of Management of L.P. Inter College Mall Road, Kanpur Nagar, gave “No Objection Certificate” to the transfer of the petitioner to its institution. The consent/ No Objection Certificate of Management of Jagatjit Inter College, Ikauna, Shravasti, was also sent to the D.I.O.S. Kanpur and was duly endorsed by Joint Director of Education Kanpur. The transfer of the petitioner is being sought on substantively vacant post of Lecturer in Education existing at L.P. Inter College, Mall Road, Kanpur Nagar, on account of retirement of the earlier incumbent, Madan Gopal Mishra, on 30.6.2007. On account of inaction on the request of the petitioner, the petitioner approached this Court by way of Writ-A No. 9747 of 2019, which
Decision
was disposed of vide order dated 12.7.2019 by this Court directing the petitioner to ventilate his grievance before the Additional Director of Education (Secondary) U.P., Prayagraj, and he was directed to pass appropriate orders. In pursuance of the same, the impugned order dated 13.9.2019 has been passed by the Additional Director of Education (Secondary) U.P., Prayagraj, rejecting the prayer of the petitioner for transfer from one institution at Shravasti to other at Kanpur. The ground for rejection of the representation of the petitioner is that at the time when the proposal dated 26.2.2019 for transfer of the petitioner was made, there was not a single student in Class XI studying subject “Education” for last many years. No student has taken admission in the subject “Education” and therefore there is no justification for permitting the transfer of the petitioner to L.P. Inter College, Kanpur Nagar. 2 of 5 A counter affidavit has been filed by learned Standing Counsel on behalf of the respondents wherein, it has been stated that Sri Madan Gopal Mishra, who was teacher in Education retired from the institution at Kanpur on 30.6.2007. Hence the post stood surrendered after three months as per Chapter 2, Regulation 21 of Intermediate Education Act, 1921 and the same has been re- sanctioned by Director of Education (Secondary) U.P., Lucknow. The management has passed illegal order of transfer in favour of the petitioner. There is no post in subject Education vacant in the institution in dispute at Kanpur Nagar. Learned counsel for the petitioner has submitted that reasons given in the impugned order and also in the counter affidavit are absolutely illegal. He has pointed out to the certificate of the Principal of the institution, which shows that in the academy session 2019-20 upto 20.5.2019, seven students were in Intermediate and seven students are studying Education in L.P. Inter College, Kanpur Nagar. He has further submitted that in the absence of any teacher in the subject Education in the aforesaid institution, the students are not being granted admission in the subject Education. The institution is also not able to grant admission to the students in the aforesaid subject on account of lack of teacher in the subject. The certificate of the L.P. Inter College, Kanpur Nagar, dated 21.5.2019 has been brought on record in this regard. It has further been submitted that the ground taken in the counter affidavit regarding Regulation 20 Chapter 2 of the Intermediate Education Act, 1921, is illegally misconceived. After coming into force of the U.P. Secondary Education Service Selection Board, the provision of Regulation 20 Chapter 2 of the Intermediate Education Act, 1921, have no application. He has submitted that since the year 2019, the petitioner is being denied 3 of 5 transfer on account of illegal orders being repeatedly passed by the Additional Director of Education (Secondary), U.P., Lucknow. After hearing rival contentions, this Court finds that there is no dispute regarding the entitlement of the petitioner to seek transfer in view of the Regulation 55 to 60 of Chapter 3 of Regulations framed under Intermediate Education Act, 1921. There is also no dispute that no objection has been given to the transfer of the petitioner by the D.I.O.S. Only dispute between the parties is whether there are sufficient number of students to justify the transfer of the petitioner as Lecturer (Education) to L.P. Inter College, Kanpur Nagar. The certificate of the Principal stating that there are seven students studying in the college in the session 2019-2020 has not been specifically denied giving any reason. Mere non admission will not be considered to be reasoned denial. Similarly the contents of paragraph No. 27 of the writ petition whereby the Principal has sent information to the D.I.O.S. that in the last may years students are not taking admission on account of non appointment of teacher in Education has not been specifically denied. The objection raised in paragraph no.19 of the counter affidavit regarding surrender of post as per Regulation 20, Chapter II of the Intermediate Education Act, 1921, is incorrect. On enforcement of U.P. Secondary Education Services Commission Act, 1982 in the year 1982, the Committee of Management has ceased to have any power for initiating selection proceedings or for advertising the vacancy. Such power is now vested in U.P. Secondary Education Services Selection Board. Noticing the aforesaid provision it has been consistently held by this Hon’ble Court that upon enforcement of U.P. Act No. 5 of 1982, Regulation 20, Chapter II of the Regulations has ceased to be operative with regard to non-minority institutions to which the provisions of U.P. 4 of 5 Secondary Education Services Commission Act are applicable, Reliance can be placed upon under noted judgements: 1. Yogendra Nath Singh Vs. D.I.O.S. Jaunpur and others, 1991(1) UPLBEC 484 (para 8) 2. Sudarshan Prasad Sharma Vs. State of U.P. and others, 1997 AWC (Supp)698 (para 7) In view of the above, the impugned order 13.09.2019 passed by Additional Director of Education (Secondary),U.P. Prayagraj, respondent no.3 is hereby quashed. The respondent no.3, Additional Director of Education, Directorate of Secondary Education, U.P. Prayagraj, is directed to pass order of transfer of the petitioner as Lecturer in Education to L.P. Inter College, Kanpur, from Jagatjit Intermediate College, Shravasti within four weeks from today. The writ petition is allowed. Order Date :- 21.4.2022 Ruchi Agrahari Digitally signed by RUCHI AGRAHARI Date: 2022.05.02 16:05:51 IST Reason: Location: High Court of Judicature at Allahabad 5 of 5