# Hari Pal Singh v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 55
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-26
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-pal-singh-v-state-of-u-p-ors-44130
- **Pages:** 13

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7 All. Hari Pal Singh Vs State Of U.P. & Ors.

55

(emphasis supplied)

12. Admittedly, the petitioner was appointed on contract basis on a consolidated salary for
a fixed term and the same was extended from time to time on the same terms and conditions. By
efflux of time the appointment of the petitioner came to an end on 31.05.1996. In view of the
settled legal position the petitioner has no right to have his contract renewed and to continue on the
post in question. No mandamus can be issued to the respondents to continue the petitioner in
service.

13. Moreover, the services of the petitioner were terminated way back in the year 1996 and
since then he is out of job. More than 20 years have passed. Even otherwise, at this distance of time
no relief, whatsoever, can be granted to the petitioner.

14. For the foregoing reasons the writ petition is devoid of merit and is accordingly
dismissed.

15. No order as to cost.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.07.2016

BEFORE

THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J.

Service Single No.- 16642 Of 2016

Hari Pal Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Prafulla Tiwari, Lalta Prasad Misra

Counsel for Respondents:
C.S.C., Ashutosh Shahi, Brijesh Yadav 'Vijay', R.K.S. Suryavanshi, Ramesh Pandey

Held

Transfer after requisition but before advertisement is legally permissible.
The Court held that once a vacancy on the post of Principal has been notified to the U.P. Secondary Education
Services Selection Board under Section 10 of the U.P. Secondary Education Services Selection Board Act,
1982, the Management may still fill the vacancy by transfer provided that the Selection Board has not
yet issued advertisement.
Selection process commences with advertisement.
56 INDIAN LAW REPORTS ALLAHABAD SERIES

The process of direct recruitment begins only when the Selection Board publishes an advertisement inviting
applications. Mere determination or notification of vacancy to the Board does not amount to commencement
of the selection process.
Discretion of Management preserved.

The Committee of Management of a recognized aided Intermediate Institution retains discretion under Section
16 of the Board Act, 1982 to choose the mode of appointment (transfer or direct recruitment), but:
Such discretion must be exercised before advertisement is issued by the Selection Board.
After advertisement, the Management loses the discretion to resort to transfer.
Full Bench decision in Prashant Kumar Katiyar harmonized.

The Court held that the Full Bench judgment in Prashant Kumar Katiyar does not prohibit transfer after
requisition; it only prohibits interference once the selection process has begun (i.e., after advertisement).
Since in the present case no advertisement had been issued by the Selection Board, the process of
considering transfer of respondent no. 11 was not illegal.
However, authorities were directed to ensure that the transfer process strictly complies with Regulations 55 to
61 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921.
The writ petition was dismissed.

CASE LAW CITED

1. Prashant Kumar Katiyar vs. State of U.P. & others (2013 (1) ESC 221) - Full Bench
2. Asha Singh vs. State of U.P. & others (2007 (3) UPLBEC 2497)
3. Smt. Amita Sinha vs. State of U.P. & others (2008 (4) ESC 2799) - Division Bench
4. N.T. Devin Kutti &others vs.Karnataka Public Service Commission(1990) 3 SCC 157 - Supreme Court
5. Ved Prakash vs. Hari Krishna Singh (Special Appeal No. 30 of 2011)
6. U.P. Secondary Education Services Selection Board vs. State of U.P. (2011 (2) ADJ 892)

(Delivered by Hon'ble Devendra Kumar Upadhyaya, J.)

1. Heard Dr. L.P. Misra, learned counsel for the petitioner, learned Standing Counsel for
the State-respondents and Shri Ramesh Pandey, learned counsel representing the respondent no.11,
who is on caveat.

2. The dispute engaging attention of this Court in the instant case relates to appointment on
the post of Principal in Lucknow Montessori Inter College, Purana Qila, Lucknow-respondent
no.10 (herein after referred to as 'LMIC'). The claim of respondent no.11 for appointment as
Principal in the said institution on the basis of transfer is being resisted by the petitioner, who, at
present, is officiating as Principal in the said institution.

3. LMIC is an Institution recognized by the Board of High School and Intermediate
Education, Uttar Pradesh, Allahabad under the relevant provisions of Uttar Pradesh Intermediate
Education Act, 1921 (herein after referred as 'the Act 1921 '). Similarly, Lala Ram Kumar Inter
College, Patranga, Faizabad (hereinafter referred to as 'LRK Inter College') is also an Intermediate
Institution recognized under the Act, 1921.
7 All. Hari Pal Singh Vs State Of U.P. & Ors.

57
4. Both these Institutions are Government aided Institutions imparting education up to
Intermediate level and students studying therein are subjected to take their examinations conducted
by the Board of High School and Intermediate Examination, Allahabad.

5. Jurisdiction of this Court under Article 226 of the Constitution of India has been sought
to be invoked by the petitioner assailing the validity of the letter/order dated 11.07.2016 of the Joint
Director of Education, VI Region, Lucknow directing the District Inspector of Schools, Lucknow
(herein after referred to as 'the DIOS') to take further action in the matter of transfer of respondent
no.11, who is working as Principal of LRK Inter College, Patranga, Faizabad, to LMIC, Lucknow.
The petitioner has also prayed that the resolution dated 18.06.2016 of the Committee of
Management of LMIC, Lucknow resolving that No Objection Certificate be issued to respondent
no.11 for his appointment as Principal in LMIC by way of transfer, be also quashed. No Objection
Certificate issued to respondent no.11 by the Committee of Management of LMIC dated
21.06.2016 has also been challenged by the petitioner in this petition.

6. The basic premise on which Dr. L.P. Misra, learned counsel appearing for the petitioner,
has proceeded to advance his arguments assailing the validity of the entire process initiated by the
Committee of Management of LMIC, Lucknow to appoint respondent no.11 on the post of
Principal in the Institution by way of transfer is that the said process of appointment is legally not
available to the Management once the requisition for filling up the post in question by direct
recruitment has been sent to the Uttar Pradesh Secondary Education Services Selection Board
(herein after referred to as 'the Selection Board) under Section 10 of Uttar Pradesh Secondary
Education [Services Selection Board] Act, 1982 (herein after referred to as 'the Board Act') read
with Rule 11 of Uttar Pradesh Secondary Education Services Selection Board, Rules, 1998 (herein
after referred to as 'the Rules, 1998').

7. Further contention of learned counsel for the petitioner is that in the instant case the
process of transferring the respondent no.11 to LMIC, Lucknow as Principal from LRK Inter
College, Patranga, Faizabad is in absolute contravention of the provisions contained in Regulations
55 to 61 of Chapter III of the Regulations framed under Section 16-G(2)(c) of Act, 1921.

8. Shri Ramesh Pandey, learned counsel representing the respondent no.11 has vehemently
opposed the very maintainability of the writ petition by submitting that since no final decision in
the matter of transfer of respondent no.11 has yet been taken by the authorities, as such the writ
petition is premature. He addressed the Court on merit as well and has argued that in the facts and
circumstances of the present case, the action of the Committee of Management of LMIC, Lucknow
which is under challenge herein, does not suffer from any illegality or irregularity and hence, the
writ petition deserves to be dismissed, even on merits.

9. Certain facts are to be noticed before dealing with the rival submissions made by the
learned counsel appearing for the respective parties. Previous regular Principal of LMIC, Lucknow,
Shri Amar Bahadur Singh was to attain the age of superannuation on 19.07.2012 as his date of birth
is 20.07.1950. He was, however, allowed to continue till the end of academic session in which he
58 INDIAN LAW REPORTS ALLAHABAD SERIES

attained the age of superannuation i.e. till 30.06.2015. Shri Amar Bahadur Singh being
National/State teacher awardee was granted extension for a further period of three years, hence, he
claimed his continuance till the end of academic session second time. However, the State
Government passed an order dated 30.09.2015 retiring Shri Amar Bahadur Singh on 30.06.2013.
The said order dated 30.09.2015 became subject matter of challenge before this Court in Writ
Petition No.6246 (S/S) of 2015, filed by Shri Amar Bahadur Singh, which was dismissed on
03.11.2015 by Hon'ble Single Judge of this Court. Special Appeal bearing No.560 of 2015 was
filed by Shri Amar Bahadur Singh challenging the order dated 03.11.2015 passed by Hon'ble
Single Judge. The Division Bench while disposing of the said Special Appeal did not interfere with
the judgement and order dated 03.11.2015, passed by Hon'ble Single Judge, however, it was
provided that no recovery shall be made from Shri Amar Bahadur Singh pursuant to the judgement
and order dated 03.11.2015 holding further therein that Shri Amar Bahadur Singh was not entitled
to continue any further or receive salary, nor shall he receive any consequential benefits arising out
of continuance beyond his entitlement. In compliance of the said order dated 30.11.2015, the
services of Shri Amar Bahadur Singh as Principal of LMIC were discontinued and officiating
charge of the post of the Principal was given to the petitioner, being the senior most Lecturer in the
Institution, by the Committee of Management, vide order dated 01.12.2015. Pursuant thereof the
petitioner submitted his joining on the post of Principal on 01.12.2015 itself and his signatures as
Principal have also been attested by the DIOS, Lucknow. Since then, the petitioner has been
officiating as Principal in LMIC, Lucknow.

10. It appears that on 03.04.2016 an application was preferred by respondent no.11 to the
Management of LMIC, Lucknow seeking his transfer on the post of Principal from LRK Inter
College, Faizabad as on account of retirement of the erstwhile Principal there had occurred a
vacancy on the post of Principal in LMIC, Lucknow on 30.11.2015. It has been stated that the
Committee of Management, LMIC, Lucknow in its resolution dated 06.05.2016 took a decision to
fill up the post and constituted a Committee comprising of three members to consider the
applications received in that regard from the Principals working in other Institutions. On
07.05.2016, the DIOS, Lucknow wrote a letter to the Management of LMIC, Lucknow stating
therein that though the post of Principal had fallen vacant in the year 2015, however, requisition for
filling up the post had not been made available to be forwarded to the Selection Board. Through the
said letter, the Management of LMIC, Lucknow was directed to ensure that the requisition be sent
for filling up the post of Principal and other posts by direct recruitment within three days, failing
which, it was also observed by the DIOS, Lucknow in his letter that under the Rules, requisition
shall be sent to the Selection Board by his office directly for which the Management of the
Institution shall be responsible.

11. The petitioner on 23.05.2016 wrote a letter to the DIOS that the post of Principal had
fallen vacant on substantive basis w.e.f. 31.07.2014 on which he has been officiating since
01.12.2015 under the orders of the Management and further that the petitioner has come to know
that the Management intends to make appointment by way of transfer of some other candidate
whereas he being the senior most teacher is entitled to be considered for promotion on ah-hoc basis
to the post of Principal. The petitioner through the said letter dated 23.05.2016 prayed that the
7 All. Hari Pal Singh Vs State Of U.P. & Ors.

59
process initiated for appointment by way of transfer be cancelled and petitioner be granted
promotion on ah-hoc basis. It appears that thereafter on receiving certain complaint on 23.05.2016,
sent by the petitioner, the DIOS sent requisition for filling up the post of Principal by direct
recruitment to the Selection Board by means of his letter dated 25.05.2016 under purported
exercise of his jurisdiction vested in him under the Board Rules.

12. It is noticeable, at this juncture, that the DIOS in his earlier letter dated 07.05.2016 had
required the Management of LMIC, Lucknow to sent the requisition to the Selection Board for
appointment by way of direct recruitment not only on the post of Principal but also on the post of
Lecturers/Teachers in L.T. Grade, however, the requisition by means of the letter dated 25.05.2016
was sent only for the post of Principal for selection by way of direct recruitment.

13. Some correspondence between the Management of LMIC and the DIOS, Lucknow
appears to have taken place and the DIOS by means of his letter dated 08.06.2016, written to the
Management of the Institution, has stated that since by his office requisition for appointment on the
post of Principal by direct recruitment has been sent to the Selection Board on 25.05.2016, as such
there is no requirement of filling up the said post by way of transfer. By the said letter dated
08.06.2016 the Management has also been required to submit proposal of ad-hoc promotion of the
petitioner on the post of Principal. In the said letter, the DIOS has also stated that any process
adopted for transfer against the post which has already been requisitioned to the Selection Board
for being filled in by way of direct recruitment is unlawful. The DIOS, thus, expresses his
disagreement with any such process.

14. The Management of LMIC, Lucknow proceeded ahead with the process relating to
making appointment on the post of Principal in the Institution by way of transfer and accordingly,
the impugned order/letter dated 11.07.2016 has been issued by the Joint Director of Education, VI
Region, Lucknow directing the DIOS to take further action in the matter of transfer of respondent
no.11 on the basis of documents received from the office of Joint Director of Education, Faizabad
Region, Faizabad, vide his letter dated 06.07.2016. It is this order/direction dated 11.07.2016 which
has been assailed by the petitioner in this petition.

15. On the basis of pleadings available on record and the arguments advanced in
furtherance thereof by the learned counsel representing the parties, the following issues have
emerged in this case for consideration and determination by this Court:-

(a) as to whether after notification of the vacancy on the post of Principal in a
recognized Intermediate Institution under Section 10 of the Selection Board Act, 1982 is made
either by the Management of the Institution or in failure whereof on the part of the Management, by
the DIOS to the Selection Board, any process of making appointment on or filling up the said
vacancy by way of transfer is legally permissible.
60 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) as to whether the Management of an Intermediate Institution is vested with any
discretion to decide and choose one of the modes enumerated in Section 16 of the Board Act, 1982
for making appointment against the vacancy on the post of Principal of an Institution.

(c) as to whether in the instant case, the provisions contained in Regulations 55 to
61 of Chapter-III of the Regulations framed under U.P. Intermediate Education Act, 1921 have
been followed while processing the application made by the respondent no.11 seeking his transfer
on the post of Principal in LMIC, Lucknow.

16. Taking up issue (c) first, this Court is of the considered opinion that since the process
of transfer of respondent no.11 to LMIC, Lucknow as Principal is still not complete and in fact is in
the mid way, as such any finding by the Court on the process adopted will be pre-judging the issue.
In this view, no finding on this issue is warranted at this stage by the Court.

17. As regards issue (a), lengthy arguments have been advanced by learned counsel
appearing for the respective parties, based on several provisions of U.P. Intermediate Education
Act, 1921, Regulations framed thereunder, the Board Act, 1982 and the Board Rules, 1998.

18. Learned counsel for the petitioner has heavily relied upon a Full Bench decision of this
Court in the case of Prashant Kumar Katiyar vs. State of U.P. And others, reported in [2013 (1)
ESC 221].

19. On the other hand, learned counsel representing the respondent no.11 has relied upon
the judgement of this Court in the case of Asha Singh vs. State of U.P. And others, reported in
[(2007)3 UPLBEC 2497] which stands affirmed by a Division Bench judgement of this Court in
the case of Smt. Amita Sinha vs. State of U.P. and others, reported in [(2008) (4) ESC 2799].

20. The Full Bench decision in the case of Prashant Kumar Katiyar (supra) considered the
claim of appointment of dependent of a teacher, who had died while in service, vis-a-vis the claim
of a candidate who was selected by the Selection Board but was not appointed on account of the
vacancy having been filled up by the other mode of direct recruitment as contemplated in the third
proviso appended to Section 16(1) of the Selection Board Act, 1982. The Full Bench has delivered
its judgement after examining the correctness of two Division Bench judgements rendered by this
Court in the case of Ved Prakash vs. Hari Krishna Singh and others, Special Appeal No.30 of
2011 decided on 19.01.2011 and that of the judgement in the case of U.P. Secondary Education
Services Selection Board, Allahabad vs. State of U.P. and others, reported in [2011 (2) ADJ 892].
The Full Bench, after discussing various provisions of the Selection Board Act, 1982 and 1998
Rules, specially those of section 10, section 16, section 11 of the Board Act, 1982 and Rule 10,
Rule 11 and Rule 12 of the Board Rules, 1998, has held that the entire exercise with regard to
determination of vacancy has to be performed mandatorily by the Management and the DIOS, to
enable the Selection Board to advertise the vacancy as notified in terms of the provisions contained
in section 10 (2) of the Board Act read with Rule 12(1). Para 36 of the said judgement is quoted
below:-
7 All. Hari Pal Singh Vs State Of U.P. & Ors.

61

"36. It is this entire exercise with regard to determination that has to be performed
mandatorily by the management and the District Inspector of Schools, to enable the Board to
advertise the vacancy as notified which shall be done through wide publicity as provided for under
Section 10(2) of the 1982 Act read with Rule 12(1) as quoted hereinabove."

21. The Full Bench crystallized the controversy which was considered by it in para 37 of
the said judgement, which is extracted herein below:

"37. The controversy raised in this reference is vis-a-vis the impact of the action
taken by the management and the District Inspector of Schools for determination of the vacancies
and the consequential advertisement made by the Board and any attempt to alter the same by
adopting the exceptional modes of appointment."

22. The Full Bench after discussing the entire matter has held in para 38 of the judgement
that the Management or the District Inspector of Schools has not been empowered under the law to
reverse the determination of vacancy and it can only add to it, subject to the contingency as
contemplated under rule 11(3). The Court further observed that this does not take away the power
to correct any arithmetical or calculative errors. Para 38 of the said judgement is relevant here
which is quoted below:-

"38. In our opinion if the management has determined the vacancy or the District
Inspector of Schools has done it as per Rule 11(4) then in that event the alteration of such
determination and intimation is controlled only to the extent as provided by sub-rule (3) of Rule 11
which authorises the management and the Inspector to notify any fresh vacancy that may have
occurred after such notification. The management or the District Inspector of Schools therefore has
not been empowered under the rules to reverse the determination and it can only add to it, subject
to the contingency as contemplated under sub-rule (3) of Rule 11. This however does not take away
the power to correct any arithmetical or calculative errors that may have crept into such
determination.

23. In the case of Prashant Kumar Katiyar (supra) the Full Bench of this Court further
proceeded to observe that no power has been conferred for altering the vacancies already
determined and intimated to the Board for the purpose of notification under the Act and the Rules.
It has further been held that requisition to fill up the vacancies having been once sent to the
Selection Board, becomes unalterable for the reason that the Selection Board proceeds with the
advertisement by publishing the vacancy against which appointments are to be made inviting
applications from the candidates giving their preference of the institutions to be indicated by them.
This Court in this case has, thus, concluded that at this stage, to upset the procedure after
advertisement by giving any further leverage would amount to disturbing the entire process of
selection and if such a concession is given, the Management can indulge into motivated
manipulations which are not uncommon and give rise to uncalled for controversies ending up in
litigation. The relevant portion of the said judgement extracted from para 39 of the said judgement
is as under:-
62 INDIAN LAW REPORTS ALLAHABAD SERIES

"At this stage, to upset the procedure after advertisement by giving any further
leverage would be to disturb the entire process of selection and if such a concession is given, the
Management can indulge into motivated manipulations which are not uncommon and give rise to
uncalled for controversies ending up in litigation."

24. Discussing the case of transfer, Hon'ble Full Bench in para 43 in the aforesaid case of
Prashant Kumar Katiyar (supra) has held that such an exercise, if any, has to be concluded prior
to determination and intimation of the vacancy to the Board and further that the Management or a
teacher cannot be permitted to make a request for allowing such transfer after determination of the
vacancies and initiation of the process by the Board. While drawing the said conclusion, the reason
given by this Court in the Full Bench judgement is that the authority of the Selection Board to
proceed with the selection should not be disturbed by such intervening claims relating to transfer.

25. Para 43 of the said judgement where Full Bench of this Court discusses the issue
relating to transfer is as under:-

"43. Taking up the case of transfer, which can be done unilaterally and even
bilaterally by exchange of teachers, has to be done on resolutions passed by the two institutions
that are to allow such appointment by way of transfer. If there is an application of any such teacher
seeking appointment by way of transfer the same has to be forwarded to the competent authority as
per the regulations meant for such appointment under Chapter-III of the U.P. Intermediate
Education Act, 1921 read with proviso to Section 16 of the 1982 Act. This exercise, if any,
therefore, has to be concluded prior to the determination and intimation of the vacancy to the
Board as per the calendar fixed under the rules. The management or a teacher cannot be permitted
to make a request for allowing such transfer after the determination of the vacancies and the
initiation of the process by the Board. The choice to fill up a vacancy by way of transfer therefore
has to be exercised reasonably and its determination has to be finalized prior to the sending of the
intimation and not thereafter. This will prevent any confusion or future complication in the process
of selection that has to be undertaken by the Board. The authority of the Board to proceed with the
selection therefore should not be disturbed by such intervening claims relating to transfer."

26. As observed above, learned counsel for appearing for the petitioner has placed very
heavy reliance on this judgement to impress upon the Court that the exercise relating to transfer or
appointment by way of transfer has to be concluded prior to determination and intimation of
vacancy to the Selection Board and since in this case the vacancy has already been notified by the
District Inspector of Schools on 25.05.2016 to the Selection Board hence, ongoing process of
transfer of respondent no.11 is completely without jurisdiction and is legally not permissible.

27. Based on the aforesaid judgement rendered by Hon'ble Full Bench of this Court in the
case of Prashant Kumar Katiyar (supra), the arguments advanced by the learned counsel for the
petitioner on the first sight appear to be impressive, however, on a deeper probe the said argument
merits rejection for the reasons which are to follow.
7 All. Hari Pal Singh Vs State Of U.P. & Ors.

63
28. The reasoning given by Hon'ble Full Bench in the case of Prashant Kumar Katiyar
(supra) is that in case after notification of the vacancy to the Selection Board any process of
making appointment by way of transfer is initiated, the same would disturb the process of selection
and further that upsetting the procedure initiated by the Selection Board for filling up the vacancy
by way of direct recruitment would give leverage to the Management which may indulge into
motivated manipulations. What is noticeable, at this juncture, is that the Full Bench has observed
that once the requisition is sent to the Selection Board, further process of advertising the vacancies
and that of selection ensues. The concern expressed by Hon'ble Full Bench, in my considered
opinion, is that the process of selection initiated by the Selection Board should not be upset or
disturbed, which is based on certain legal principles. Process of selection starts on publication of
advertisement inviting applications for filling up the vacancies and that is how Hon'ble Full Bench
in para 39 has used the phrase "at this stage, to upset the procedure after advertisement". Since the
selection process starts on making the advertisement, as such, in my opinion, there is no bar to fill
up the vacancy by way of transfer once the vacancy has been notified to the Selection Board, but
the said liberty is available to the Management of an Institution only before the process of selection
commences, that is to say, before an advertisement is made by the Selection Board inviting
applications to fill up the vacancy by direct recruitment.

29. In para 43 of the judgement in the case of Prashant Kumar Katiyar (supra), Hon'ble
Full Bench of this Court has observed that the Management or a teacher cannot be permitted to
make a request for transfer "after determination of the vacancies and initiation of the process by the
Board". Initiation of selection process by the Board commences on advertising the vacancies and
not merely on determination of vacancies and its notification to the Selection Board either by the
Management of the Institution or by the DIOS. The Full Bench in para 43 of the judgement in the
case of Prashant Kumar Katiyar (supra) has taken note of the legal proposition that the authority
of the selection Board to proceed with the selection should not be disturbed by an intervening claim
relating to transfer. What is of significance is to prevent any disturbance in the selection process
initiated by the Selection Board which, in my considered opinion, commences with the publication
of the advertisement inviting applications for filling up the vacancies.

30. The aforesaid view is also supported by the judgement of this Court in the case of Asha
Singh (supra). This Court in the said case of Asha Singh after analysing the various provisions of
law has held that the process by direct recruitment starts with the issuance of advertisement by the
Selection Board and thus, it would be appropriate to restrict the exercise of discretion by the
Management qua the mode of appointment (that is, by transfer or by direct recruitment) for filling
up the vacancy up to that stage only. The said view expressed by this Court in Asha Singh (supra)
is based on a judgement of Hon'ble Supreme Court in the case of N.T. Devin Kutti and others vs.
Karnataka Public Service Commission and others, [(1990) 3 SCC 157], wherein it has been
clarified that the process of selection starts with the advertisement.

31. Paragraphs 17, 18, 19 and 21 of the judgement in the case of Asha Singh are relevant to
be quoted which are as under:-
64 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The Hon'ble Supreme Court of India in the case of N.T. Devin Kutti and others
vs. Karnataka Public Service Commission and others, [(1990) 3 SCC 157], has clarified that the
process of selection starts with the advertisement, and the selection of candidates is to be made in
accordance with the existing Rules and Government Orders applicable on that date. The rights of
the candidates crystallises on the date of publication of the advertisement (Reference paragraph11). The process of selection ends with the appointment.

18. In view of the aforesaid judgement of Hon'ble Supreme Court of India, it is held
that the process of direct recruitment starts with the issuance of the advertisement, by the U.P.
Secondary Education Services Selection Board, Allahabad. It would be logical to restrict the
exercise of its discretion by the Committee of Management qua the mode of appointment (i.e., by
transfer or by direct recruitment) for filling up the vacancy upto that stage only.

19. This Court may record that once the vacancy is advertised, the Committee of
Management must loose its discretion to fill the same vacancy by transfer inasmuch as the process
of direct recruitment has been started. Once the advertisement is made by the U.P. Secondary
Education Services Selection Board, Allahabad the Committee of Management cannot resort to the
mechanics of transfer for the purposes of filling up of the same vacancy, which had already been
advertised.

21.This Court, therefore, holds that once the vacancy has been advertised on a
requisition made by the Committee of Management by the U.P. Secondary Education Services
Selection Board, Allahabad, the Committee of Management looses its discretion to resort to mode
of appointment by way of transfer and than it is only by direct recruitment on the recommendation
of the U.P. Secondary Education Services Selection Board, Allahabad that any appointment
against the vacancy advertised can be made.

32. The issue relating to harmonizing the processes of appointment contemplated in the
provisos appended to Section 16 to the Board Act, 1982 has been considered by a Division Bench
of this Court in the case of Smt. Amita Sinha (supra). The judgement rendered by the Division
Bench in the case of Smt. Amita Sinha (supra) was in special appeal filed against the judgement of
Hon'ble Single Judge in the case of Asha Singh (supra). In para 10 of the judgement in the case of
Smt. Amita Sinha (supra) the Division Bench has formed an opinion that the mode of appointment
by transfer will apply only in case the process to fill up the vacancy has not been initiated by the
Commission (now Board). It has further been held therein that the process begins with
advertisement of vacancy and that to take a different view would be to create a clash in the
operation of the two sets of provisions. The relevant portion occurring in para 10 of the judgement
in the case of Smt. Amita Sinha (supra) is as under:-

"We are of the view that the only way to harmonize the two modes is to interpret the
statute in a manner that the mode of appointment by transfer is confined to apply only in case
where process to fill up the vacancy has not been initiated by the Commission. That process begins
7 All. Hari Pal Singh Vs State Of U.P. & Ors.

65
with the advertisement of vacancies. To take a different view would be to create a clash in the
operation of the two sets of provisions."

33. Yet at another place i.e. in para 12 the Division Bench in the case of Smt. Amita Sinha
(supra) has observed that an order of appointment by transfer cannot be made after the commission
has issued the advertisement.

34. Submission of learned counsel for the petitioner that after the judgement of Full Bench
of this Court in the case of Prashant Kumar Katiyar (supra), the judgements rendered in the case
of Asha Singh (supra) and Smt. Amita Sinha (supra) are no more good law, also needs to be
considered at this stage. From a closer scrutiny of the aforesaid judgement of the Full Bench in the
case of Prashant Kumar Katiyar (supra) and also that of the judgements in the case of Asha Singh
(supra) and Smt. Amita Sinha (supra) what emerges is that there is no conflict in the ratio laid
down by the aforesaid judgements. What has been emphasized in all the three judgements is that
the two processes of appointment, namely, through transfer and through direct recruitment, are to
be harmonized in such a fashion that the process once initiated by the Board for selection for
appointment by direct recruitment does not get hampered or aborted in the mid way. As already
observed above, the process of selection begins with the publication of advertisement and hence I
am unable to agree with the submission made by the learned counsel for the petitioner in this
regard.

35. In the light of the aforesaid discussion, finding of the Court in respect of issue (a) as
formulated above is that any process adopted for making appointment through transfer against a
vacancy notified to the Board for being filled in by way of direct recruitment is legally permissible
only before the advertisement is issued by the Selection Board pursuant to the requisition sent to it.

36. The next issue to be determined here is in relation to the discretion of the Management
of an intermediate institution to decide and choose one of the modes/processes enumerated in
Section 16 of the Board Act, 1982 for making appointment against a vacancy. In this regard, under
the scheme of U.P. Intermediate Education Act the powers, duties and functions of the Committee
of Management of a recognized aided institution becomes inevitable to be examined. The powers,
functions and duties of the Committee of Management as defined in Regulation 13 of Chapter-I of
the Regulations framed under Intermediate Education Act includes the powers of appointment. The
provisions of Regulation 13 of Chapter-I of the Regulations framed under Intermediate Education
Act is extracted below:-

13. Power, Duties and Functions of the Committee of Management.-Powers,
duties and functions of the Committee of Management shall include the following:

(i) Appointment, confirmation, promotion, permission to cross efficiency bar
suspension and punishment (including, removal and dismissal) of Headmaster, Principal, teacher,
matron, clerk or librarian in accordance with the provisions of the Act and the regulations.
66 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) To decide appeals against entries made, in character rolls of employees by the
Head/Manager of the institution.

(iii) Grant of all leave admissible to the employees of the institution except where
such power vests in the Headmaster or Principal.

(iv) Control and management of all moneys, securities property and endowments of
the institution, excluding the Boys Funds and taking of necessary measures for their safe custody,
investment, repairs, maintenance and legal protection.

(v) Ensuring proper utilization of maintenance and development grants and
reimbursements received from Government.

(vi) Receiving all incomes (excepting stipends, scholarships and Boys' Funds)
subscriptions, donations, gifts, dividends, interest, grants, etc. for the institution and meeting
financial obligations arising out of its duties and functions."

37. One of the basic functions vested in the Committee of Management of an institution is
appointment and disciplinary action against the teaching and non-teaching staff including Principal.
The Selection Board Act, 1982 has been enacted only for the purposes of providing an independent
selection mechanism under which the Selection Board has been constituted which, on the basis of
selection held by it, makes recommendations for appointment against teaching posts in the
recognized institutions. Ultimately, the power to appoint vests in the Committee of Management.
Ordinarily though the recommendation made by the Selection Board is binding on the Committee
of Management but in appropriate cases such recommendation can be resisted by the Committee of
Management for valid reasons. Right to discharge duties to a teacher or Principal does not accrue
merely on his selection to a post but the said right accrues only on his appointment. Function of
appointment of a teacher or Principal is a very vital function which, under the statutory scheme
contained in Regulation 13 of Chapter-I of Regulations framed under the U.P. Intermediate
Education Act, has been entrusted to the Committee of Management. In this view, if it is held that
the Committee of Management does not have any discretion to decide and choose one of the
processes enumerated in Section 16 of the Board, 1982 for appointment, the same would result in
diluting the statutory functions and powers of the Committee of Management to make
appointments.

38. This Court in the case of Asha Singh (supra) has held that it is the domain of the
appointing authority to adopt any mode of appointment. This Court in the said case has clearly held
that the Committee of Management has a discretion to fill up the vacancy by way of transfer,
however, as observed above, such discretion is to be exercised within a particular time frame that is
up to a particular stage.

39. Paras 14 and 15 of the judgement in the case of Asha Singh (supra) are relevant in this
regard, which are quoted below:-
7 All. Manish Kumar Singh & Ors. Vs State Of U.P. & Ors.

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"14. It is no doubt true that it is with the domain of the Appointing Authority to
adopt to any of the modes of appointment in respect of the vacancy in question in accordance with
the statutory provisions applicable.

15. It may be recorded that against the vacancy, which is required to be filled by
direct recruitment, the Committee of Management has a discretion to fill up the vacancy by way of
transfer. Such is the language of Section-16. The issue, however, is as to whether such discretion is
to be exercised by the Committee of Management within a particular time frame/ upto a particular
stage, or at any point of time till actual appointment is made against the vacancy."

40.