JHARKHANDEY SINGH Vs. ADDITIONAL DIRECTOR OF EDUCATION SECONDARY

JUDGEMENT

(1.) By means of this writ petition, the petitioner has prayed for quashing the order dated 27.4.2001 (Annexure-1 to the writ petition) passed by respondent No. 1 by which the respondent No. 5 has been transferred to the petitioner's College as Principal.

(2.) There is an Intermediate College in the name of Nand Kishore Singh Inter College, Rampur Majha. Ghazipur (hereinafter referred to as the College). The post of Principal in the aforesaid College fell vacant on 30.6.2000, on account of retirement of its permanent Principal Sankatha Prasad. The vacancy was intimated to the Board on 16.3.2000. It has been stated in the writ petition that the management of the College proposed transfer of respondent No. 5 who was working as Principal in the Inter College, Tarighat, Ghazipur but the same was turned down by the District Inspector of Schools but thereafter, by the impugned order dated 27.4.2001, the respondent No. 5 was placed as Principal in the present College, which is impugned in this petition.

(3.) The ground of challenge in this petition is the transfer of respondent No. 5 to the present College, on the ground that the respondent No. 5 could not be treated to have been substantively appointed as Principal in the Inter College, Tarighat, Ghazipur and as such, his transfer on the post of Principal in the present College, is not permissible under law. It has been submitted that it is only regular and validly appointed Principal who can be transferred to the present College. It has been argued that the respondent No. 5 is said to have been appointed as Principal on ad hoc basis on 30.4.1991 who is said to have been regularised w.e.f. 7th August, 1993. Referring to the provisions of Section 33B as inserted in U. P. Secondary Education Services Selection Board Act, 1982, it has been submitted that any teacher appointed by promotion or by direct recruitment on or after July 31st, 1988 but not later than May 14, 1991 on ad hoc basis, against substantive vacancy in accordance with the provisions of Section 18, shall be given substantive appointment by the management of the institution, if he has been found suitable for appointment in a substantive capacity by a selection committee constituted under Sub-section (2). In view of the aforesaid, it has been submitted that firstly a selection committee has to be constituted, the petitioner has to be found suitable for appointment, only then, the appointment could be given as Principal. It has been pointed out that this provision has come w.e.f. 7th August, 1993 and, therefore, by no stretch of imagination, the petitioner can be said to be regularised w.e.f. that very date, i.e., 7th August, 1993. As giving of appointment/ regularisation under the provision of Section 33B of the Act, is not a deeming provision and as it has to take place on completion of some process in that regard, there has to be some gap after 7.8.1993. In view of the aforesaid, the very claim of the respondent No. 5 for having been regularised w.e.f. 7.8.1993 and the order in this respect is not only illegal but is void and is a nullity. It has been further submitted that in view of insertion of Section 33B under the aforesaid Act, If a teacher is appointed by promotion on or after 31.7.1988 but not later than 6.8.1993 on ad hoc basis against substantive basis on the post of Principal or Head Master, in accordance with Section 18, shall be given substantive appointment by the management, if he is found suitable for giving appointment by the selection committee constituted under Sub-section (2). It has been submitted that firstly, the appointment of respondent No. 5 on the post of Lecturer w.e.f. 7.8.1993 was invalid and thereafter in any view of the matter, his ad hoc promotion on the post of Principal cannot be regularised as ad hoc appointment on the post of Principal must be on or before 6.8.1993. Admittedly, the respondent No. 5 was appointed as Lecturer in his substantive capacity, w.e.f. 7th August, 1993, which too is under serious dispute, the respondent No. 5 cannot be said to have been regularised on the post of Principal. On the aforesaid premises, it has been submitted that the transfer of respondent No. 5 to the petitioner's College is liable to be quashed.