AMITA SINHA Vs. STATE OF U P

JUDGEMENT

(1.) SUDHIR Agarwal, J. The dispute in this appeal is between the appellant Smt. Amita Sinha who was transferred on a vacant post of Assistant Teacher to Indian Girls Inter College, Allahabad and respondent no. 6 Smt. Asha Singh who is a candidate selected by the U. P. Secondary Education Services Selection Board and was empanelled for appointment as Assistant Teacher in that College against the same vacancy.

(2.) IT appears that the appellant had made an application dated 6. 7. 2005 to the Additional Director of Education for her transfer from Bapu Balika Inter College, Faizabad, where she had been working, to the Indian Girls Inter College, Allahabad. The committee of management of Bapu Balika Inter College, Faizabad gave no objection to the appellant's request for transfer on 17. 5. 2005. The committee of management, Indian Girls Inter College, Allahabad also gave its consent on 27. 6. 2005. The request was also accepted by the educational authorities and an order of transfer of the appellant was passed on 8. 5. 2006 by the Additional Director of Education pursuant to which the appellant joined as a Teacher in Indian Girls Inter College, Allahabad on 27. 5. 2006. Before this process of transfer of the appellant had begun, it appears that the management of Indian Girls Inter College, Allahabad had already notified the vacancy to the Commission on 13. 1. 2005. The Commission issued an advertisement on 15. 9. 2005 inviting applications from candidates for direct recruitment in respect of this vacancy also and in pursuance of the selection a panel of selected candidates was notified by the Commission on 26. 6. 2006. Respondent no. 6 was placed in the panel for being appointed in Indian Girls Inter College, Allahabad. However, the appellant had already been transferred to Indian Girls Inter College, Allahabad and respondent no. 6 could not be given any appointment in the College and, therefore, filed the writ petition giving rise to the present special appeal. She prayed for quashing the order of transfer passed in favour of the appellant.

(3.) SRI Ashok Khare, learned Senior Advocate made two submissions. He placed reliance upon the provisions of Section 16 of the U. P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as "1982 Act") and submitted that under the said provision apart from the process of appointment by selection through the Services Commission there are other modes of appointment contemplated. He referred to provisions of sub-section (1) of Section 16 under which vacancy can be filled by promotion under section 12 or from Reserve Pool Teachers under Section 21-B or by regularisation under section 33-A, 33-B, 33-C, 33-D and 33-F. He also drew our attention to the three provisos in Section 16 under which a vacancy can be filled by appointment of a retrenched employee under section 16ee of the Intermediate Education Act, 1921 or by compassionate appointment in L. T. Grade of a dependent of a teacher dying in harness. Section 16 thus contemplates apart from transfer and selection by the Commission various other modes of appointment. The view taken by the learned Single Judge that no appointment by transfer to an institution can be made after the vacancy in the post of teacher in that institution is advertised, is to be tested says Mr. Khare in the light whether the same limitation would apply to other modes of appointment as well because there can be no reason to apply a different standard in other modes of appointment. The other submission made by SRI Khare is that a candidate selected by the Commission does not have an indefeasible right for appointment and a selected candidate can fail to get an appointment in several eventualities and in various situations where for instance, the vacancy may cease to exist on account of abolition of the post or increase in the age of superannuation or for other reasons and failure of the selected candidate to obtain an appointment where the post has already been filled up by another mode of appointment is one of such eventualities.