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

- **Citation:** (2016) 8 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-02
- **Bench:** Amreshwar Pratap Sahi, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-pal-singh-v-state-of-u-p-ors-44230
- **Pages:** 11

## Text

8 All. Hari Pal Singh Vs State Of U.P. & Ors.
157
(2016) 8 ILRA 157
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.08.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Special Appeal No.- 311 Of 2016

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

Counsel for Appellant:
Dr. L.P. Misra, Prafulla Tiwari

Counsel for Respondents:
C.S.C., Ashutosh Shahi, Raj Kr Singh Suryvanshi

This present intra-Court appeal arises out of the judgment delivered by a learned Single Judge whereby the
appellant's writ petition has been dismissed and it has been held that the process of appointment of the
respondent No.11/Dr. Krishna Kant Yadav for being appointed as a Principal in the Lucknow Montessori Inter
College, Purana Qila, Lucknow by way of transfer under Regulations 55 to 61 of Chapter III of the U.P.
Intermediate Education Act, 1921 can be undertaken provided he fulfills the conditions of the aforesaid
Regulations. The post has not yet been advertised by the U.P. Secondary Education Services Selection Board
for being filled up by direct recruitment.

The learned Single Judge dismissed the writ petition holding that the Committee of Management of a
recognized institution is possessed of the discretion to decide and choose the mode/process of direct
recruitment as enumerated under Section 16 of the U.P. Secondary Education Services Selection Board Act,
1982 for appointing a Principal and since the said discretion is available before the advertisement is published
by the Board, then the same can be gone into and the competent authority cannot be prevented from
assessing the candidature of a person to be appointed by way of transfer.

Court observed that the process for determining the vacancy and notifying it commences with the exercise
under Rule 11 of the 1998 Rules and is not dependent upon the date of advertisement by the Commission
under Rule 12 thereof. Consequently, court is unable to sustain the reasons given by the learned Single Judge
on that count and we accordingly set aside the same. However, at the same time, the direction given by the
learned Single Judge to the authority to consider the issue of transfer of respondent No.11 in accordance with
the Regulations 55 to 61 of Chapter III does not call for any interference. Court also observed that while
determining this issue, the competent authority will also have to consider as to whether the Committee of
Management had passed a valid resolution unilaterally and as to whether it was in consonance with the
aforesaid Regulations or not, as the learned Counsel for the appellant has raised this issue specifically. The
authority will therefore have to determine the said process as well. Apart from this, the authority will also
examine the status of the conscious decision taken for adopting the mode of recruitment or it's failure by the
Committee of Management and the facts relating thereto.
158 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned counsel for the respondent No.11 Sri Ramesh Pandey has categorically objected to this contending
that the Committee of Management had taken a conscious decision on 6.5.2016 to adopt the mode of transfer
and the District Inspector of Schools merely on an alleged complaint of the appellant had proceeded to send
these communications thereafter on 7.5.2016 and 25.5.2016 which is a mala fide exercise and does not
amount to a bona fide exercise of power under Rule 11 (4) of the 1998 Rules. This issue also, in court
opinion, would be subject to the facts brought on record to be determined by the authority who will process
the claim of transfer and advert to this issue as well. The status of the communication of the District Inspector
of Schools whether it would amount to an intimation of a vacancy as per Rule 11 (4) will also have to be
looked into.

The appeal is therefore allowed.

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Shamsher Bahadur Singh, J.)

1. This intra-Court appeal arises out of the judgment delivered by a learned Single Judge
whereby the appellant's writ petition has been dismissed and it has been held that the process of
appointment of the respondent No.11/Dr. Krishna Kant Yadav for being appointed as a Principal in
the Lucknow Montessori Inter College, Purana Qila, Lucknow by way of transfer under
Regulations 55 to 61 of Chapter III of the U.P. Intermediate Education Act, 1921 can be undertaken
provided he fulfills the conditions of the aforesaid Regulations. The post has not yet been
advertised by the U.P. Secondary Education Services Selection Board for being filled up by direct
recruitment.

2. The appellant had challenged the letter dated 11.7.2016 issued by the Joint Director of
Education, VI Region, Lucknow, whereby he had called upon the District Inspector of Schools to
take further action in processing the appointment of the respondent No.11 by way of transfer on the
basis of the documents received, and also prayed for quashing of the resolution dated 18.6.2016 of
the respondent No.10 Committee of Management as well as the No Objection of the Committee
dated 21.6.2016.

3. The appellant relying on the Full Bench decision of this Court in the case of Prashant
Kumar Katiyar vs. State of U.P. and others [2013 (1) ESC 221] had urged before the learned
Single Judge that once the District Inspector of Schools had taken the steps for requisitioning the
post to be filled up by direct recruitment, then this amounted to a determination of vacancy to be
filled up by direct recruitment which could not be reversed by the Committee of Management by
resorting to fill-up the post by way of transfer under the aforesaid Regulations. It is for this reason
learned counsel for the appellant has urged that the Joint Director of Education had committed an
error by calling upon for the documents vide letter dated 11.7.2016 for processing the appointment
by way of transfer of the respondent No.11.

4. The learned Single Judge dismissed the writ petition holding that the Committee of
Management of a recognized institution is possessed of the discretion to decide and choose the
8 All. Hari Pal Singh Vs State Of U.P. & Ors.
159
mode/process of direct recruitment as enumerated under Section 16 of the U.P. Secondary
Education Services Selection Board Act, 1982 for appointing a Principal and since the said
discretion is available before the advertisement is published by the Board, then the same can be
gone into and the competent authority cannot be prevented from assessing the candidature of a
person to be appointed by way of transfer.

5. Dr. L. P. Misra, learned Counsel for the appellant submits that the aforesaid conclusion
of the learned Single Judge is based on an incorrect inference drawn of the ratio of the Full Bench
decision in the case of Prashant Kumar Katiyar (supra) and the Committee of Management could
not have undertaken the process of appointment by way of transfer once the District Inspector of
Schools had taken the step of filling up of the post by selection and direct recruitment through the
Board vide letters dated 7.5.2016 and 25.5.2016. He has further submitted that the learned Single
Judge having not correctly appreciated the ratio of the Full Bench has arrived at an incorrect
conclusion, inasmuch the Committee of Management has no right to proceed to take a decision in
the given circumstances for appointment by way of transfer. Firstly, it is in violation of the Uttar
Pradesh Secondary Education Services Selection Board Rules, 1998, particularly Rules 10, 11 and
12 as the Committee of Management had overstepped its authority and secondly, the respondent
No.11 cannot claim any such right of appointment.

6. It may be placed on record that admittedly, the post has not yet been advertised and
secondly, the process of the claim of the respondent No.11 has not attained any finality as no final
decision by the competent authority has been taken to give effect to the proposed transfer of the
respondent No.11. It was only at the stage of the letter of the Joint Director of Education dated
11.7.2016 that the appellant approached this Court for restraining the said process.

7. Dr. L. P. Misra has also urged that apart from the fact that the Committee of
Management could not have made any proposal for filling up of the post by way of transfer, it
could not have defeated the right of the appellant as contained under the 1998 Rules which mandate
that while sending a proposal for direct recruitment, the name of the senior-most Teacher has to be
sent alongwith requisition for consideration and the appellant being the senior-most Teacher in the
institution would be losing his right and privilege as a candidate for being selected as a Principal on
permanent basis. This right being reserved under Rule 11 (2) (b) of the 1998 Rules, if the
Committee of Management is allowed to fill-up the post by way of transfer, the appellant would be
losing this opportunity and therefore, his cause is being prejudiced, hence he has a right to
challenge the action impugned.

8. Dr. L. P. Misra has further submitted that the appellant is officiating and has a right to be
appointed on ad hoc basis as a Principal and get his salary. The appellant has a right to function as
an ad hoc Principal in terms of Section - 18 of the Act. He is entitled to release of his salary on the
post of Principal, hence the writ petition filed by him was very much maintainable. He therefore
submits that the contention of the respondent No.11 that the appellant has no right to interfere with
the process of direct recruitment or by way of transfer is misplaced. To the contrary, Dr. L. P.
160 INDIAN LAW REPORTS ALLAHABAD SERIES

Misra submits that none of the rights of the respondent No.11 have crystallized for him to stake his
claim as against the rights of the appellant which have already accrued in his favour.

9. Replying to the aforesaid submissions raised, Sri Ramesh Pandey, learned Counsel for
the respondent No.11 has urged that the writ petition was absolutely pre-mature and not
maintainable on behalf of the appellant, inasmuch as the process of appointment by way of transfer
had not yet attained finality with any final order having been passed in that regard by the competent
authority. Secondly, the appellant has no right to claim his continuance or challenge the process of
appointment by way of transfer or direct recruitment, inasmuch as the right to choose the mode of
appointment is preserved in the Committee of Management and which has rightly been exercised
on 6.5.2016. The said resolution determines the mode selected by the Committee for filling up of
the post by way of transfer and no requisition has been sent by the Committee for filling up the post
by direct recruitment. This resolution of the Committee cannot be overridden by the District
Inspector of Schools, who on 7.5.2016 had erroneously issued a letter to the Management to notify
and requisition the post to the U.P. Secondary Education Services Selection Board for direct
recruitment. The contention is that the District Inspector of Schools could not have exercised it's
authority so as to dilute the decision and resolution of the Committee of Management to fill-up the
post by way of transfer.

10. He submits that the learned Single Judge has not committed any error in drawing the
inference that the Full Bench authority in the case of Prashant Kumar Katiyar (supra) clearly
intended to preserve the said determination of mode of filling up of the post in the Committee of
Management which can be exercised up to the stage of the advertisement, if issued for appointment
by way of direct recruitment by the Board. He contends that mere sending of a requisition or
determination of a vacancy does not prohibit the committee from taking steps to exercise it's option
for filling up the post by way of transfer, even if any requisition has been sent to the District
Inspector of Schools or by him to the Board. His contention is that the determination of the vacancy
and the requisitioning of the post to the Selection Board is not the stage of prohibition of exercise
of option for filling up the post by way of transfer. According to the Full Bench as inferred by the
learned Single Judge, this process of appointment by way of transfer can be adopted at any stage
prior to the issuance of the advertisement of the post by the Selection Board. He submits that the
Full Bench clearly intended to hold that the selection process should not be jeopardized after the
advertisement, but before the advertisement takes place the Committee can take steps for filling up
the said post by way of transfer. He therefore submits that the learned Single Judge has neither
misunderstood the Full Bench judgment nor a wrong inference has been drawn.

11. He further submits that in the absence of any right crystallized in favour of the
respondent No.11 and the stage of the processing of filling up of the post by way of transfer having
not attained finality, the writ petition filed by the appellant was not only pre-mature but was also an
unnecessary exercise for impeding the correct process that had been adopted by the Committee of
Management. He further submits that the District Inspector of Schools had not in effect determined
the vacancy nor he had undertaken any such exercise and he had suddenly acted on the complaint
of the appellant. This process does not amount to determination of vacancy by the District
8 All. Hari Pal Singh Vs State Of U.P. & Ors.
161
Inspector of Schools and therefore neither the letter dated 7.5.2016 nor the letter dated 25.5.2016 in
any way amounts to a determination of the mode or requisitioning the post to be filled up by way of
direct recruitment by the Selection Board. He submits that the District Inspector of Schools has
acted hurriedly at the instance of the appellant for no valid reason and therefore, the Joint Director
of Education was perfectly justified in calling for documents vide letter dated 11.7.2016. He
submits that the District Inspector of Schools had mala fidely tried to forestall the resolution of the
Committee of Management of the institution.

12. Replying to the said arguments, in rejoinder Dr. L. P. Misra contended that under
Regulations 55 to 61 of the Chapter III, the process of appointment by way of transfer has several
steps. He submits that if the transfer is from one district to another, which is involved presently,
where the transfer is sought from an institution from Faizabad to an institution in district Lucknow,
the appellant-institution is first required to pass a resolution and send it to the Regional Director of
Education. This is to be done through the District Inspector of Schools. It is thereafter that the
recipient college where the appointment is to be made is informed about it through the District
Inspector of Schools of that district that the recipient-institution passes a resolution for accepting
any such proposal. In the instant case, it is a unilateral transfer in the sense that the respondent
No.11 has opted for being appointed by way of transfer in the institution at Lucknow and this is not
a matter relating to reciprocal transfer between the two incumbents. Thus, according to Dr. L. P.
Misra, the process has been completely reversed in the present case whereby the recipient college
at Lucknow, where the appellant is functioning as ad hoc Principal, has on its own passed a
resolution in favour of the respondent No.11 and sent it directly to the Joint Director of Education.
This process therefore is contrary to the Regulations and hence, the entire action of processing the
transfer of respondent No.11 is vitiated.

13. Learned Standing Counsel for the State Authorities/ respondent Nos. 1 to 9 contends
that the decision on the claim of transfer by the respondent No.11 is yet to be taken and therefore,
the exercise was pre-mature. Learned Standing Counsel however submits that the law of the Full
Bench in the case of Prashant Kumar Katiyar (supra) will have to be taken into consideration
even by the authority while determining the process of transfer to be adopted in the present case.
The fact with regard to the sending of the letters dated 7.5.2016 and 25.5.2016 by the District
Inspector of Schools for filling up of the post by direct recruitment and then the subsequent letter
dated 11.7.2016 of the Joint Director (Education) calling for the records for consideration of the
transfer of the respondent No.11 will have to be determined in view of the law laid down by the
Full Bench.

 Dates & events

o Amar Bahadur Singh was the permanent Principal about whom there was a dispute
with regard to his date of retirement. His Writ Petition No.6246 (SS) of 2015 in
this regard came to be dismissed on 3.11.2015, which was affirmed in Special
Appeal No.560 of 2015.
162 INDIAN LAW REPORTS ALLAHABAD SERIES

o 30.11.2015 - Services of Amar Bahadur Singh were discontinued and officiating
charge was given to the appellant vide order of the Committee of Management
dated 1.12.2015.

o Signatures of the appellant were attested by the District Inspector of Schools on
7.12.2015.

o The Committee of Management did not send any requisition for the post of Principal
and Lecturers to be filled by direct recruitment.

o 6.5.2016 - Alleged resolution of the respondent No.10/ Committee of Management
to fill up the post by way of transfer which is seriously disputed by the appellant as
being manipulated.

o 7.5.2016 and 25.5.2016 - The District Inspector of Schools dispatches the letters for
notifying the vacancies of Principal and Lecturers vacant in the institution to be
filled up by direct recruitment alleged to have been received by the Selection
Board on 2.6.2016.

o 8.6.2016 - The District Inspector of Schools disagrees with the proposal of transfer
in view of the determination of the vacancy and it's notification on 25.5.2016.

o 18.6.2016 - Resolution of the Committee of Management to provide No Objection to
the respondent No.11 for his transfer.

o 21.6.2016 - No Objection Certificate to the respondent No.11.

o 6.7.2016 - The Joint Director of Education, Faizabad Region, where the respondent
No.11 is working, forwards the documents relating to the proposal of transfer of
respondent No.11.

o 11.7.2016 - The Joint Director of Education, VI Region, Lucknow sends a letter to
the District Inspector of Schools for further action.

o Writ Petition No.16642 (SS) of 2016 giving rise to the present appeal filed.

14. On a conspectus of the aforesaid facts and the arguments advanced, the issue which
deserves determination is as to what is the stage up to which the appointment by way of transfer
can be permitted. The learned Single Judge has held that since the process of selection begins with
the advertisement and since the advertisement has not yet been made by the U.P. Secondary
Education Services Selection Board, therefore, the Full Bench according to the learned Single
Judge permits the consideration of appointment by way of transfer up to the stage of advertisement.
This is being countered by the learned counsel for the appellant contending that the learned Single
8 All. Hari Pal Singh Vs State Of U.P. & Ors.
163
Judge even though has extracted certain paragraphs of the judgment of the Full Bench in the case of
Prashant Kumar Katiyar (supra), but has omitted to consider the impact of what has been stated
by the Full Bench after noticing Rules 10, 11 and 12 of the 1998 Rules in paragraphs 25 to 41 of
the judgment read as a whole.

15. On a consideration of the ratio of the Full Bench in the case of Prashant Kumar
Katiyar (supra), what we find is that the learned Single Judge in the impugned decision has
extracted paragraphs 36, 37 and 38 of the said judgment and thereafter, it crosses over to paragraph
- 43 of the judgment and has then reconciled it with the judgments in the cases of Asha Singh vs.
State of U.P. And others [2007 (3) UPLBEC 2497] and Smt. Amita Sinha vs. State of U.P. And
others [2008 (4) ESC 2799] to conclude that the appointment through transfer would be legally
permissible up to the stage of advertisement only.

16. We are unable to uphold the said view of the learned Single Judge, inasmuch as it
appears that the learned Single Judge has concluded that the process of direct recruitment starts
with the issuance of advertisement and in such a situation, prior to that, the process of appointment
by way of transfer would be permissible. The ratio of the Full Bench in the case of Prashant
Kumar Katiyar (supra) in paragraphs 38, 39, 40 and 41 has clearly concluded that the power of the
Management or the District Inspector of Schools or even the authority which is to give effect to any
transfer cannot proceed to adopt any other mode of recruitment after the steps taken for
determination and notification as per Rule 11 of the 1998 Rules. It has also been held that the
alteration of any such determination is not permissible and cannot be reversed. This has been
reiterated in paragraph - 39 of the decision. Not only this in paragraph - 40, the Full Bench also
obliges the Committee and the District Inspector of Schools to fulfill their obligations as per Rule
11 for determination and intimation of vacancies. The ratio therefore of the Full Bench read with
the aforesaid Rules is clearly to the effect that the authorities, who are obliged to fill up the
vacancies occurring in the year of recruitment, have to mandatorily perform their function of
determining and notifying the vacancy. The failure by the Management or the District Inspector of
Schools to act as per Rule 11 of the 1998 Rules would therefore not generate a right in favour of
any person to seek transfer or even in the Committee of Management to defeat the very purpose of
Rule 11 of determining or intimating the vacancies to the Selection Board for direct recruitment.
The Committee of Management no doubt has the right to select the mode of recruitment when it
has to be filled up directly in the event it has an option from a candidate seeking transfer. However,
this conscious decision of the Committee of Management to adopt a particular mode has to be
taken within the time frame as provided under Rule 11 of the 1998 Rules. If the Committee of
Management is allowed to violate the time schedule, then it would be allowing the Committee of
Management to have a free play to choose to determine it's mode of recruitment at any time which
is not the purpose of the Rules. For that matter, under Sub-Rule (4) of Rule 11, the District
Inspector of Schools is also obliged to take a decision as per the specifications of the time schedule
provided in Rule 11 itself for the Committee as well as for the District Inspector of Schools. This
compliance has to be adhered to keeping in view the year of recruitment and also the eligibility of
the candidate including his qualification as on the first day of the year of recruitment which would
be the 1st of July of the year in question. However, any failure on their part would not extend the
164 INDIAN LAW REPORTS ALLAHABAD SERIES

right of the Management to any stage beyond that for adopting the mode of appointment by way of
transfer. It is this aspect which has been insisted upon by the Full Bench in the paragraphs referred
to here-in-above and which has not been noticed by the learned Single Judge in the impugned
judgment. Consequently, we are of the opinion that the learned Singe Judge has not correctly
appreciated the ratio of the Full Bench and has therefore arrived at an incorrect conclusion that the
option is open up to the stage of advertisement for making appointment by way of transfer. The
impugned judgment therefore cannot be sustained to that extent.

17. There is yet another aspect which deserves to be explained, namely, that the process of
determination and intimation of vacancy for direct recruitment is a distinct process under Rule 11
of the 1998 Rules. The stage of advertisement comes after the request is received by the Board. The
stage of determination and notification of the vacancy is therefore a unique methodology in this
process of selection which is a stage prior to advertisement. It is for this reason that the judgment in
the case of Prashant Kumar Katiyar (supra), as noted above, has held that this process should not
be avoided which is mandatory. Consequently, the learned Single Judge did not appreciate this
distinction while applying the principles of commencement of the date of selection process on the
strength of the judgments of the Supreme Court and the ratio of the judgments in the cases of Asha
Singh (supra) and Smt. Amita Sinha (supra) respectively. The said logic of the initiation of the
selection process has to be distinguished in the present process of recruitment where the initiation
of the determination of vacancy is relevant for the purpose of choosing the mode of recruitment
under the 1998 Rules. Consequently, we are of the opinion that once the determination and the
notification process is either made or there is a failure on the part of the Management to do so, then
the District Inspector of Schools has to perform his duty as per Rule 11 (4). Once this contingency
has occurred, then the option of the mode to recruit by transfer is not available. This issue will
therefore have to be taken into account by the Joint Director (Education) who would be under our
orders in this appeal be now proceeding to examine the matter.

18. We may further again clarify that an argument is advanced in most of the cases as also
at present that even there is a determination and intimation of vacancy, the Commission takes a
long time in proceeding to fill up a post or even not advertising the post in spite of notification.
This deserves to be clarified by us that in the event any such situation arises, then the remedy open
to the Committee of Management or any aggrieved party is to approach this Court for a Mandamus
for performance of the obligatory duty under Rule 11 of the 1998 Rules. Any failure on the part of
the Commission to either advertise or not proceeding with the recruitment expeditiously cannot
devolve a corresponding right on any person seeking transfer or the Committee of Management to
proceed to process an appointment by way of transfer on account of such a lapse. Any allowance to
the Committee of Management would therefore defeat the very purpose of Rule 11 and any
Committee can slip away by this method to alter it's mode of recruitment by resorting to transfer
even at a later stage. The judgment of the Full Bench in the case of Prashant Kumar Katiyar
(supra) has emphasized to plug all such loopholes that may be available to the Committee of
Management for avoiding it's responsibility. Thus, for the purpose of invoking it's power of
determination to choose the mode of direct recruitment would be limited to the Committee of
Management within the period as prescribed under Rule 11 of the 1998 Rules for determination and
8 All. Hari Pal Singh Vs State Of U.P. & Ors.
165
notification of vacancies and not beyond that. The issuance of advertisement or otherwise by the
Commission therefore in relation to the mode of direct recruitment will be of no avail. It is for this
reason that the Full Bench in the case of Prashant Kumar Katiyar (supra) made this allowance up
to the date of advertisement only in the case of compassionate appointment and not in the case of
transfer.

19. In a writ petition that gave rise to Special Appeal No.1879 of 2013, Raja Ram v. Dr.
Rajesh Kumar and 6 others, an interim order was made subject matter of the aforesaid Special
Appeal in a pending writ petition. The Special Appeal was disposed of vide judgment dated
9.12.2013 by observing as follows:-

"Prima-facie at this stage, it appears that in 2008, a requisition was sent by the
Management in view of the retirement of the then principal. In view of the law laid down by the
Full Bench, the exercise of resorting to a transfer of an employee has to be completed prior to
determination and intimation of the vacancy to the Board and not thereafter. The appellant has
in pursuance of the direction dated 08th November, 2013 joined the office of the principal on
officiating basis and the respondent was relieved on 09th November, 2013."

20. We find ourselves in agreement with the aforesaid observations of the Division Bench
as the process for determining the vacancy and notifying it commences with the exercise under
Rule 11 of the 1998 Rules and is not dependent upon the date of advertisement by the Commission
under Rule 12 thereof. Consequently, we are unable to sustain the reasons given by the learned
Single Judge on that count and we accordingly set aside the same.

21. However, at the same time, the direction given by the learned Single Judge to the
authority to consider the issue of transfer of respondent No.11 in accordance with the Regulations
55 to 61 of Chapter III does not call for any interference. We may, however, add that while
determining this issue, the competent authority will also have to consider as to whether the
Committee of Management had passed a valid resolution unilaterally and as to whether it was in
consonance with the aforesaid Regulations or not, as the learned Counsel for the appellant has
raised this issue specifically. The authority will therefore have to determine the said process as
well. Apart from this, the authority will also examine the status of the conscious decision taken for
adopting the mode of recruitment or it's failure by the Committee of Management and the facts
relating thereto.

22. The District Inspector of Schools in this case has intervened directing the Committee
by issuing communications for proceeding to fill up the post by direct recruitment and accordingly
inform the Selection Board as per the documents on record. Learned counsel for the respondent
No.11 Sri Ramesh Pandey has categorically objected to this contending that the Committee of
Management had taken a conscious decision on 6.5.2016 to adopt the mode of transfer and the
District Inspector of Schools merely on an alleged complaint of the appellant had proceeded to send
these communications thereafter on 7.5.2016 and 25.5.2016 which is a mala fide exercise and does
not amount to a bona fide exercise of power under Rule 11 (4) of the 1998 Rules. This issue also, in
166 INDIAN LAW REPORTS ALLAHABAD SERIES

our opinion, would be subject to the facts brought on record to be determined by the authority who
will process the claim of transfer and advert to this issue as well. The status of the communication
of the District Inspector of Schools whether it would amount to an intimation of a vacancy as per
Rule 11 (4) will also have to be looked into.

23. We, therefore, direct the authority that in addition to the directions given by the learned
Single Judge to also advert to the aforesaid questions as well. We would have ourselves gone into
the aforesaid questions but we find that the learned Single Judge has completely omitted to answer
the aforesaid contentions. Since we are setting aside the judgment on the issue of law determined
by us as indicated here-in-above, we leave it open to the parties to canvass the aforesaid facts to be
determined by the competent authority accordingly and independently.

24. There is yet another issue to be clarified with regard to the contention of the learned
Counsel for the respondent No.11 that the appellant has absolutely no right to contest this position
as he is only claiming a right to function on ad hoc basis. Dr. L. P. Mishra, learned counsel for the
appellant is not unjustified in contending that the appellant being the senior-most Teacher has a
right to the extent that his name has also to be sent while notifying the vacancy by direct
recruitment as per Rule 11 (2) (b) of the 1998 Rules. Not only this, it is the senior-most Teacher
who has a right to function on ad hoc basis on the post of Principal which is sought to be occupied
by way of transfer by the respondent No.11. If the transfer of the respondent No.11 cannot be given
effect to in law, then the appellant will certainly have a right to object to the same as his
continuance on ad hoc basis as Principal and receiving salary on such post would directly be
involved. It would therefore be not correct to say that the appellant has no right to contest the said
position.

25. However, there is substance in the argument that the issues that have been raised are at
a slightly pre-mature stage, inasmuch as the claim of the respective parties is yet to be determined
by the competent authority which is directly dependent on the claim of the transfer of the
respondent No.11. It shall therefore open to the respective parties to raise a challenge on merits as
and when, if permissible under law, whenever the competent authority takes a decision as per our
directions given hereunder and the law as observed here-in-above.

26. The appeal is therefore allowed and the impugned judgment is set aside to the aforesaid
extent with a direction to the Joint Director (Education) of the region concerned to proceed with the
matter and determine the respective claims expeditiously, preferably within six weeks of the date of
presentation of a certified copy of this order before him and after giving an opportunity of hearing
to the Committee of Management as well as to the appellant and the respondent No.11.
-----------
8 All. Akaram Farruki @ Chunmun Vs State Of U.P. & Anr.
167
(2016) 8 ILRA 167
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.08.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Application U/S 482 No.- 22502 Of 2016

Akaram Farruki @ Chunmun ...Applicant
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Applicant:
Pravendra Kumar Chauhan

Counsel for Opposite Parties:
G.A.

In complaint case no. 172 of 2014 (Sudhir Vs. Sabir Ali and others), prosecution case in brief was that
applicant and five other persons had trespassed the house of complainant Sudhir Kumar (present OP No.-2)
and used force to get signature of complainant and his brother on certain blank documents. On the basis of
statement under sections 200 and 202 Cr.P.C., summoning order dated 10.1.2014 was passed against
applicant and other co-accused persons.

Offence under section 3(1) (x) SC/ST Act is made out only when it is committed "in any place within public
view", but in present matter, according to complaint and statement of witnesses, the alleged incident had
occurred within the house of complainant-OP No.-2 and not in any place within public view.

Court observed that this application is partly allowed. The order of prosecution for offence under section 3(1)
(x) SC/ST Act is quashed, but the prosecution of applicant in complaint case no. 172/2014 (Sudhir Vs. Sabir
Ali and others) will be carried out for other offence.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the applicant, learned AGA and perused the records.

2. In complaint case no. 172 of 2014 (Sudhir Vs. Sabir Ali and others), prosecution case in
brief was that applicant and five other persons had trespassed the house of complainant Sudhir
Kumar (present OP No.-2) and used force to get signature of complainant and his brother on certain
blank documents. On the basis of statement under sections 200 and 202 Cr.P.C., summoning order
dated 10.1.2014 was passed against applicant and other co-accused persons.

3. From perusal of complaint and statement of complainant under section 200 Cr.P.C., it
appears that, if prosecution case is taken to be true in its entirety, in that case also the alleged overt