DARSHAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri R. G. Padia for the petitioner. Shri Ashok Khare for respondent No. 7 and Sri Haider Zaidi for respondent No. 2.

(2.) HEREIN the petitioner challenges the order of transfer of respondent No. 7 to fill up the post of Principal in Rashtriya Higher Secondary School, Jinhera, Etah which was lying vacant since 1992.

(3.) CONTENTION of the learned counsel for the petitioner, in my view, is not acceptable as it has no legal backing. Petitioner being a senior-most teacher has a right of being considered for selection on the post of Principal in case appointment is to be made by way of direct recruitment through the Commission. Section 16 of the Commission Act postulates appointment also by way of transfer. In case, however, the post has been advertised but could not be filled up by way of selection for long time for one or the other reason, in that event, filling up the post by taking resort to transfer cannot be excluded simply because the senior-most teacher who has a right of being considered for appointment on that post shall be deprived of his being considered for appointment on that post. Right to be considered for appointment is available if the appointment is to be made by direct recruitment and not otherwise. Issue of advertisement and calling applications for filling a vacancy by direct recruitment will not disentitle the Commission to fill the post in any other permissible mode. The Act does not make any distinction in respect of the situation as to when a post can be filled up by way of transfer or by way of direct recruitment. Therefore, it is for the Commission to decide the mode in which the post can be suitably filled up without there being any suggestion of mala fide decision of the Commission to fill up the post by way transfer cannot be questioned only because earlier the same post was advertised. The contention of the learned counsel is, therefore, rejected.