YAMUNA NARAIN MISRA Vs. DISTRICT INSPECTOR OF SCHOOLS

JUDGEMENT

(1.) By means of this writ petition, the petitioner has prayed for quashing the order dated 29.12.1993 passed by respondent No. 3, Annexure-2 to this writ petition, in so far as it directs the respondent No. 4 to function as the Principal of the institution and also for issuing a direction calling upon the respondents to permit the petitioner to function as officiating/cd/ioc Principal of the institution. The institution in question is run under the name of Janta Intermediate College, Mau Aiema, district Allahabad, which is governed by the provisions of the U.P. Act No. 5 of 1982, the U.P. Intermediate Education Act, 1921 and U.P. Act No. 24 of 1971. The petitioner was appointed as a permanent lecturer in Sanskrit in the institution and he took over charge from 22.7.1971 and since then he has been continuously functioning as such. Respondent No. 4 was also appointed on the same day as lecturer in English. One Rama Kant Tripathi was the Principal of the institution. A substantive vacancy occurred due to the retirement of Sri Tripathi on 30.6.1993. The vacancy was notified by the Management of the Institution in accordance with the provisions of U.P. Act No. 5 of 1982 but no regular selection could be made through the agency of the Secondary Education Services Commission/Regional Selection Board, Sri B.P. Shukla was the senior most lecturer in the institution and was, therefore, permitted to function as adhoc Principal of the institution in the vacancy caused due to the retirement of Sri Rama Kant Tripathi. Subsequently Sri Shukla, tendered his resignation which was considered and accepted on 26.12.1993. Thereafter the Management directed Sri Shukla to hand over charge to the respondent No. 4 as adhoc Principal though according to the petitioner he was senior to Sri Prem Narain Singh respondent No. 4. This direction of the Management is challenged as being arbitrary, discriminatory and violative of Article 14 of the Constitution and also being against the previsions of U.P. Intermediate Education Act, 1921 and the U.P. Act No. 5 of 1982. It is stated that after his appointment as Lecturer in English, the respondent No. 4 by the order dated 1.7.1982 passed by the District Inspector of Schools, Jaunpur was transferred from the institution in question to Public Inter College, Shahganj, district Jaunpur, hereinafter referred to as the 'transferee institution'. In pursuance of the aforesaid order, respondent No. 4 was relieved from the institution on 7.7.1982. The respondent No. 4 joined the 'transferee institution' on 8.7.1982 and started functioning there as lecturer. It may be stated that the aforesaid transfer of the respondent No. 4 was made with the consent of the Committee of Management of the Institution in question and of the transferee institution and the same was also approved by the D.I.O.S. With regard to some similar transfers effected from and Educational Institution to another Educational institution in the State of Uttar Pradesh several writ petition were filed in this Court challenging the validity of such transfer orders. A Full Bench of the Court held such transfers, which were effected subsequent to 14.7.1981 i.e. the date of the commencement of U.P. Act No. 5 of 1982, to be invalid. The decision of the Full Bench was affirmed even by the Supreme Court. In view of the aforesaid position, an order was passed but the Manager of the transferee institution on 22.12.1988 to relieve Sri Prem Narain Singh, the respondent No. 4 from the said institution. As a result thereof the petitioner was sent back to-this original institution where he resumed his duties as lecturer from 30.9.89 and since then he has been continuously working there.

(2.) It may be stated that the judgment of the Full Bench of this Court as affirmed by the Apex Court created a lot of difficulties as transfers of Principals and Teachers, continued to be made even after 14th of July, 1981 and legal rights accrued to the transferred teachers and Principals in the transferee institution. In order to rectify the same, the State Legislature intervened and enacted U.P. Act No. 8 of 1991 to be called as the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment and Validation) Act, 1991. This Act was made enforceable with retrospective effect from 14.7.81. Sub-section (3) of the amended Section of 16 of U.P. Act No. 5 of 1982 validated all the transfers made in pursuance of the Regulations 59 and 59-A framed under clause (c) of Sub-section (2) of Section 16-G of the U.P. Intermediate Education Act, 1921.

(3.) The petitioner's case is that after the aforesaid validation Act, the transfer made of respondent No. 4 to the transferee institution revived and therefore, the respondent No. 4 could only be treated to be a lecturer in the 'transferee institution' for all practical purposes and his inclusion in the seniority list of. lecturers of the institution in question was illegal and on the basis of that he could not be appointed as adhoc Principal in the institution in question. For this reason the impugned order of the Committee of Management appointing the respondent No. 4 to act as adhoc Principal was invalid and liable to be quashed.