# Chauharya Dubey v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-22
- **Case number:** Special Appeal No. 1349 of 2008
- **Bench:** S.P. Mehrotra, Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chauharya-dubey-v-state-of-u-p-and-others-42173
- **Pages:** 4

## Headnote

Sri G.k.Gupta
Sri M.D. Singh 'Shekhar'
Sri R.D. Tiwari
Sri Sanjeet Kumar Yadav
Sri A.K. Yadav
Sri Pankaj Rai
C.S.C.

Constitution
of
India,
Article
226appointment of Principle by Transfer-No
objection by authorized controller for
purposes
of
mutual
consent
of
management
of
both
institution-be
treated the consent if manager held-
"Yes" as per law laid down by Full Bench
Yashoda Rajkumari Kunjali's case.

Held: Para 18

It will thus be noticed that the main
contention
made
by
the
petitionerappellant in the Writ Petition as also in
the
present
Special
Appeal
stands
answered
against
the
petitionerappellant, and it is evident that the
Prabandh Sanchalak of the institution in
question was authorized to give consent
and No-Objection Certificate in respect
of the transfer of the respondent no.6 on
the post of Principal to the institution in
question.
Case law discussed:
(2002) 1 UPLBEC 683; Civil Misc. Writ Petition
No. 46320 of 2004, Yashoda Raj Kumari Kunjil
Vs. State of U.P. and others; (2011) 1 UPLBEC
370

## Text

1 All] Chauharya Dubey V. State of U.P. and others
407
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2012

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE MRS. SUNITA AGARWAL, J.

Special Appeal No. 1349 of 2008

Chauharya Dubey

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Vinod Kumar Singh
Sri Arun Kumar Mishra
Sri Radha Kant Ojha
Sri Dinesh Kumar Tripathi
Sri R.S. Gupta

Counsel for the Respondents:
Sri G.k.Gupta
Sri M.D. Singh 'Shekhar'
Sri R.D. Tiwari
Sri Sanjeet Kumar Yadav
Sri A.K. Yadav
Sri Pankaj Rai
C.S.C.

Constitution
of
India,
Article
226appointment of Principle by Transfer-No
objection by authorized controller for
purposes
of
mutual
consent
of
management
of
both
institution-be
treated the consent if manager held-
"Yes" as per law laid down by Full Bench
Yashoda Rajkumari Kunjali's case.

Held: Para 18

It will thus be noticed that the main
contention
made
by
the
petitionerappellant in the Writ Petition as also in
the
present
Special
Appeal
stands
answered
against
the
petitionerappellant, and it is evident that the
Prabandh Sanchalak of the institution in
question was authorized to give consent
and No-Objection Certificate in respect
of the transfer of the respondent no.6 on
the post of Principal to the institution in
question.
Case law discussed:
(2002) 1 UPLBEC 683; Civil Misc. Writ Petition
No. 46320 of 2004, Yashoda Raj Kumari Kunjil
Vs. State of U.P. and others; (2011) 1 UPLBEC
370

(Delivered by Hon'ble S.P. Mehrotra, J. )

1. The present Special Appeal has
been filed against the judgment and order
dated 22.9.2008 passed by the learned
Single Judge dismissing Civil Misc. Writ
Petition No. 49796 of 2008 filed by the
petitioner-appellant.

2. It appears that the petitionerappellant was working on the post of
Lecturer
in
Gangapur
Inter
College,
Gangapur,
Varanasi
(hereinafter
also
referred to as "the institution in question").
By the order dated 7.3.2008, Prabandh
Sanchalak was appointed in the institution
in question. One Dashrath Singh, who was
working as the Principal of the institution in
question, after attaining the age of
superannuation retired from the post of
Principal on 30.6.2008.

3. By the order dated 1.7.2008 passed
by the Prabandh Sanchalak of the institution
in question, the petitioner was appointed as
Officiating Principal of the institution in
question. It was further observed in the said
order
dated
1.7.2008
that
the
pay,
allowances, etc., admissible for the said
post, would be payable after the consent/
approval of the District Inspector of
Schools, Varanasi.

4. By the order dated 26.7.2008, the
District Inspector of Schools, Varanasi
attested the signature of the petitioner-
408 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
appellant consequent to his appointment as
Officiating Principal of the institution in
question.

5. It further appears that by the order
dated 5.9.2008 passed by the Additional
Director of Education (Intermediate), Uttar
Pradesh, Allahabad, the respondent no.6,
who was working as the Principal of
Gahmar Inter College, Gahmar, Ghazipur,
was transferred as Principal of the
institution in question.

6. It further appears that the said
transfer
order
was
made
after
the
Committee of Management, Gahmar Inter
College, Gahmar passed a Resolution dated
17.8.2008 and gave its No-Objection
Certificate dated 17.8.2008, and also the
Prabandh Sanchalak of the institution in
question
passed
a
Resolution
dated
19.8.2008 and gave his No-Objection
Certificate dated 19.8.2008. Pursuant to the
said Transfer Order dated 5.9.2008, the
respondent no.6 submitted his joining on the
post of Principal of the institution in
question. The District Inspector of Schools
by the order dated 15.9.2008 attested the
signature of the respondent no.6 as the
Principal of the institution in question.

7. The petitioner-appellant filed the
aforesaid Civil Misc. Writ Petition No.
49796 of 2008, interalia, making the
following prayer:

"i) a writ, order or direction in the
nature of certiorari to call for the record as
well as order dated 5.9.2008 passed by the
Additional
Director
of
Education
(Secondary), U.P., Allahabad and to quash
the same;

ii) a writ, order or direction in the
nature of mandamus commanding the
respondents not to interfere in the
functioning of the petitioner as Principal of
the Gangapur Inter College, Gangapur,
Varanasi and to pay his salary regularly
month to month applicable to the said post;

iii) a writ, order or direction in the
nature of mandamus restraining the
respondent no.6 from the joining the post of
Principal in Gangapur Inter College,
Gangapur, Varanasi;

iv) any other writ, order or direction
as this Hon'ble Court may deem fit and
proper in the circumstances of the case;

v) award costs of the writ petition to
the petitioner."

8. By the order dated 22.9.2008, the
learned Single Judge dismissed the said
Writ Petition filed by the petitionerappellant.

9. Thereupon, the petitioner-appellant
has filed the present Special Appeal.

10. By the order dated 14.10.2008, a
Division Bench of this Court granted
interim order in the present Special Appeal,
which is reproduced below:

"We have heard Sri Ashok Khare,
learned senior counsel assisted by Sri V.K.
Singh for the appellant, learned standing
counsel appearing for respondents no.1, 2,
3 and 4 and Sri G.K. Gupta, learned
counsel appearing for respondent no.6.
They pray for and are allowed one month's
time to file counter affidavit. The appellant
shall have two weeks thereafter to file
rejoinder affidavit. The appellant shall take
steps, to serve respondent no.5 by registered
post, within a week. The office shall send
notice returnable at an early date.
1 All] Chauharya Dubey V. State of U.P. and others
409

List on the date fixed by the office in
the notice.

Learned counsel for the appellant has
urged that in the institution Prabandh
Sanchalak has been appointed. As per
Regulations 55 to 61 of Chapter III of the
Regulations
framed
under
the
U.P.
Intermediate Education Act, 1921 the
transfer from one institution to another can
be made subject to the consent and
approval of both the committees of
management. In the instant case permission
has been granted by Prabandh Sanchalak.
Prima facie, we are of the opinion that
Prabandh Sanchalak could not grant such
an approval/consent. The question has also
been referred to a larger bench as has been
noticed by the learned single judge in his
judgment. In this view of the matter, the
appellant is entitled to interim order.

Until further orders of this court, effect
and operation of the judgment and order
dated 22.9.2008 passed by learned single
judge and the order dated 5.9.2008
transferring
respondent
no.6
to
the
appellant's institution shall remain stayed."

11. It further appears that against the
said order dated 14.10.2008, the respondent
no.6 filed Special Leave Petition before the
Supreme Court. By the order dated
24.10.2008, Their Lordships of the Supreme
Court dismissed the said Special Leave
Petition.

12. We have heard Shri R.K. Ojha,
learned counsel for the petitioner-appellant,
the learned Standing Counsel appearing for
the respondent nos. 1 to 4 and Shri M.D.
Singh 'Shekhar', learned Senior Counsel
assisted by Shri R.D. Tiwari, learned
counsel for the respondent no.6, and
perused the record.

13. The main contention of the
petitioner-appellant in the Writ Petition as
well as in the present Special Appeal has
been that the Prabandh Sanchalak appointed
in the institution in question was not
authorized to give consent for transfer of the
respondent no.6 as Principal of the
institution in question, as the said power
could be exercised only by the Committee
of Management.

14. In Narendra Kumar Vs. State of
U.P. and others, (2002) 1 UPLBEC 683,a
learned Single Judge held that the Prabandh
Sanchalak appointed in an Institution was
authorised to give consent, like Committee
of Management, for transfer of a Principal
to the Institution.

15. In Civil Misc. Writ Petition No.
34450
of
2001,
Committee
of
Management,
Uchchtar
Madhyamik
Vidhyala Samiti, Sukhpura, Ballia and
another
Vs.
Director
of
Education
(Secondary) U.P., Lucknow and others
connected with Civil Misc. Writ Petition
No.36980 of 2001, Surendra Nath Gupta
Vs. State of U.P. through Secretary
Secondary Education, Government of
U.P., Lucknow and others, another learned
Single Judge disagreed with the view taken
by the learned Single Judge in Narendra
Kumar case (supra), and referred the
following questions for consideration by a
Larger Bench :

"1. Whether the consent of Prabandh
Sanchalak appointed by Joint Director of
Education under Clause 7 of the Scheme of
Administration for holding election given by
him under Regulation 58 of Chapter III of
Regulation made under the Intermediate
Education Act, 1921 for transfer of a
Principal to the institution amounts to
410 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
consent of the 'Committee of Management'
as provided in proviso (1) to Regulation
61(1) of the Regulations as above? and

2. Whether the interpretation given by
learned Single Judge in favour of such
consent given by Prabandh Sanchalak to be
valid by interpreting proviso (1) to
Regulation 61(1), in Narendra Kumar Vs.
State of U.P. and others, is correct."

16. In view of the above reference, a
learned Single Judge also referred Civil
Misc. Writ Petition No. 46320 of 2004,
Yashoda Raj Kumari Kunjil Vs. State of
U.P. and others, for consideration by the
Larger Bench.

17. The said questions were answered
by the Larger Bench by its decision dated
8.9.2010 holding that "once an Authorized
Controller/
Prabandh
Sanchalak/
Administrator is appointed, such a person
will exercise all powers conferred by the
Scheme of Administration and in addition
the powers conferred by the various Acts,
Regulations and the Rules."The said
decision is reported in Yashoda Rajkumari
Kunjil Vs. State of U.P. and others, (2011)
1 UPLBEC 370.

18. It will thus be noticed that the
main contention made by the petitionerappellant in the Writ Petition as also in the
present Special Appeal stands answered
against the petitioner-appellant, and it is
evident that the Prabandh Sanchalak of the
institution in question was authorized to
give consent and No-Objection Certificate
in respect of the transfer of the respondent
no.6 on the post of Principal to the
institution in question.

19.

In
the
circumstances,
no
interference is called for with the judgment
and order dated 22.9.2008 passed by the
learned Single Judge dismissing the Writ
Petition filed by the petitioner-appellant
challenging
the
transfer
order
dated
5.9.2008.

20. Shri R.K. Ojha, learned counsel
for the petitioner-appellant has fairly stated
that the petitioner-appellant has already
retired on 30.6.2009.

21. In view of the above, the Special
Appeal filed by the petitioner-appellant is
liable to be dismissed, and the same is
accordingly dismissed.

22. However, on the facts and in the
circumstances of the case, there will be no
orders as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.04.2012

BEFORE
THE HON'BLE S. V.SINGH RATHORE, J.

U/S 482/378/407 No. - 1369 of 2012

Shiv Pratap Singh

 ...Petitioner
Versus
The State of U.P Thru Principal Secy.,
Home., and others
 ...Respondents

Counsel for the Petitioner:
Sri R.S. Tripathi

Counsel for the Respondents:
Govt. Advocate

Cr.P.C.-Section 482-quashing of FIRallegations of procuring forged willcancellation under consideration in Civil
suit-FIR lodged after 10 years-in view of
Shushil Suri Case-held-not availablefrom perusal of allegations-can not be
termed mala-fide-can not be interfereddirection to consider Bail Application