# Mayashankar v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-13
- **Case number:** Writ-A No. 5106 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mayashankar-v-state-of-u-p-ors-52315
- **Pages:** 8

## Headnote

290 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Civil Law - Constitution of India,1950
- Article 226 - Uttar Pradesh Education
Service Selection Commission Act, 2023 -
Sections 10(1) & 31(1) - Uttar Pradesh
Education Service Selection Commission
Rules, 2023 - Chapter - V - Rule 28, 28(5)
- Writ Petition - challenging the proposal/order
forwarded by Joint Director of Education
Varanasi to Additional Director of Education
(Secondary) UP for transferring the opposite
party (Nitya Nand Mishra) to the post of
Principal at a Inter college where petitioner is
posted as officiating Principal - petitioner
represented with request to permit him on the
post till joining of a candidate recommended by
the UP Secondary Education Services Selection
Board - rejected - court finds that, after
enactment of UP Education Services Selection
Commission Act, 2023 & Rules, 2023 replead
the earlier Acts & Rules of 1980, 1982, 1998
and 2019 - Rule 28(5) of Rule, 2023 provides
that the vacancies which have been notified,
shall not be filled by a solitary transfer and if
solitary
transfer
is
necessary
in
special
circumstances, it shall be brought to the notice
of Commission and same shall be included in
the notified posts and this vacancy shall also be
covered by the same selection process - hence,
after commencement of the Selection process,
no solitary transfer will be made under any
circumstances - writ petition dismissed. (Para -
23, 24, 28)

(B) Civil Law - Constitution of India -
Article 226 - Uttar Pradesh Education
Service Selection Commission Act, 2023 -
Sections - 10(1) & 31(1) - Uttar Pradesh
Education Service Selection Commission
Rules, 2023 - Chapter - V - Rule 28, 28(5)
- Writ Petition - challenging the validity of order
passed by Director of Education (Secondary) UP,
transferring the opposite party (Nitya Nand
Mishra) from the post of Principal of a
secondary School Kushinagar to a Inter college
Varanasi where petitioner is posted as officiating
Principal on the medical ground - held, under
the UP Education Services Selection Commission
Rules, 2023, there is no absolute prohibition
against filling up a vacant post of Principal by
transfer after a requisition for filling up the
vacancy has been sent, provided the selection
process has not been commenced - hence,
there is no illegality in transfer of opposite party
from the post of Principal in question - writ
petition are dismissed. (Para - 29)

Writ petitions dismissed. (E-11)

List of Cases cited:

## Text

8 All. Mayashankar Vs. State of U.P. & Ors.
289
of the entry which is important, not the
phraseology. The grant of a `good' entry is
of no satisfaction to the incumbent if it in
fact makes him ineligible for promotion or
has an adverse effect on his chances.

41.
In
our
opinion,
noncommunication of entries in the Annual
Confidential Report of a public servant,
whether he is in civil, judicial, police or
any other service (other than the military),
certainly has civil consequences because it
may affect his chances for promotion or get
other benefits (as already discussed above).
Hence, such non-communication would be
arbitrary, and as such violative of Article
14 of the Constitution."

9. The Apex Court in another case i.e.
Rukshana Shaheen Khan vs. Union of
India reported in AIR 2018 SC (Supp)
1252 has also held that uncommunicated
and adverse ACRs cannot be relied upon in
the process. The relevant para-2 reads as
under:-

"2. In view of the decision of this
Court in Sukhdev Singh v. Union of India
and others, reported in (2013) 9 SCC 556:
(AIR 2013 SC 2741), there cannot be any
dispute on this aspect. This Court has
settled the law that uncommunicated and
adverse ACRs cannot be relied upon in the
process."

10. In the recent judgment rendered in
the case in re: R.K. Jibanlata Devi vs. High
Court of Manipur through its Registrar
General reported in AIR 2023 SC 1190 the
similar view has been taken by the Apex
Court.

11. Learned Standing Counsel has,
however, tried to defend the order dated
01.12.2023 but in the light of letter dated
19.03.2024 (Annexure No.8) whereby the
petitioner has been communicated the
entries of Annual Confidential Report for
the last five years, he could not defend the
impugned order.

12. Accordingly, the instant writ
petition is allowed.

13. The impugned order dated
01.12.2023 (Annexure No.1) is hereby set
aside/ quashed. The opposite party No.2 i.e.
the
Director
General
(Mahanideshak)
Tourism Directorate, U.P., Lucknow is
directed to ignore the uncommunicated
entries and take a fresh decision for the
petitioner, strictly in accordance with law,
and before taking appropriate decision the
petitioner shall be afforded an opportunity
of hearing.

14. No order as to cost.
----------
(2024) 8 ILRA 289
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 5106 of 2023
Along With
Writ-A No. 10109 of 2024

Mayashankar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kailash Singh Kushwaha

Counsel for the Respondents:
Sri Ashutosh Mani Tripathi, C.S.C., Sri Daya
Shankar Mani Tripathi, Sri Ramesh Chandra
Dwivedi, Sri Rohit Singh, Sri Vijay Kumar
Ojha, Sri R.K. Ojha (Sr. Advocate)
290 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Civil Law - Constitution of India,1950
- Article 226 - Uttar Pradesh Education
Service Selection Commission Act, 2023 -
Sections 10(1) & 31(1) - Uttar Pradesh
Education Service Selection Commission
Rules, 2023 - Chapter - V - Rule 28, 28(5)
- Writ Petition - challenging the proposal/order
forwarded by Joint Director of Education
Varanasi to Additional Director of Education
(Secondary) UP for transferring the opposite
party (Nitya Nand Mishra) to the post of
Principal at a Inter college where petitioner is
posted as officiating Principal - petitioner
represented with request to permit him on the
post till joining of a candidate recommended by
the UP Secondary Education Services Selection
Board - rejected - court finds that, after
enactment of UP Education Services Selection
Commission Act, 2023 & Rules, 2023 replead
the earlier Acts & Rules of 1980, 1982, 1998
and 2019 - Rule 28(5) of Rule, 2023 provides
that the vacancies which have been notified,
shall not be filled by a solitary transfer and if
solitary
transfer
is
necessary
in
special
circumstances, it shall be brought to the notice
of Commission and same shall be included in
the notified posts and this vacancy shall also be
covered by the same selection process - hence,
after commencement of the Selection process,
no solitary transfer will be made under any
circumstances - writ petition dismissed. (Para -
23, 24, 28)

(B) Civil Law - Constitution of India -
Article 226 - Uttar Pradesh Education
Service Selection Commission Act, 2023 -
Sections - 10(1) & 31(1) - Uttar Pradesh
Education Service Selection Commission
Rules, 2023 - Chapter - V - Rule 28, 28(5)
- Writ Petition - challenging the validity of order
passed by Director of Education (Secondary) UP,
transferring the opposite party (Nitya Nand
Mishra) from the post of Principal of a
secondary School Kushinagar to a Inter college
Varanasi where petitioner is posted as officiating
Principal on the medical ground - held, under
the UP Education Services Selection Commission
Rules, 2023, there is no absolute prohibition
against filling up a vacant post of Principal by
transfer after a requisition for filling up the
vacancy has been sent, provided the selection
process has not been commenced - hence,
there is no illegality in transfer of opposite party
from the post of Principal in question - writ
petition are dismissed. (Para - 29)

Writ petitions dismissed. (E-11)

List of Cases cited:

1. Prashant Kumar Katiyar Vs St. of UP &
ors.(2013 ADJ vol. 1 523),

2. Hari Pal Singh Vs St. of U.P. (2016 vol. 6
All.L.J. 203).

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Kailash Singh Kushwaha,
the learned counsel for the petitioner, Shri
Pradeepta Kumar Shahi, the learned counsel for
the State of U.P. and Shri R. K. Ojha Senior
Advocate assisted by Sri Rohit Singh Advocate,
the learned counsel for the opposite party No.5.

2. The petitioner Mayashankar has filed
Writ A No.5106 of 2023 challenging a proposal
dated 30.12.2022 forwarded by the opposite
party No.5 - Joint Director of Education,
Varanasi Region, Varanasi to the opposite party
No.2 - Additional Director of Education
(Secondary), U.P., Prayagraj, for transferring
the opposite party No.6 - Nityanand Mishra to
the post of Principal, Bharat Sewak Samaj Inter
College, Hathiyar, Varanasi and he has prayed
for being permitted to continue as Ad-hoc
Principal of the aforesaid College till joining of
a candidate recommended by the U.P.
Secondary Education Services Selection Board.
By way of amendment in the writ petition, the
petitioner has prayed for quashing of an order
dated 16.05.2023 passed by the Additional
Director of Education (Secondary), U.P.,
Prayagraj,
rejecting
the
petitioner's
representation submitted against the aforesaid
transfer order.

3. Writ A No.10109 of 2024 has been
filed by the petitioner challenging validity
of an order dated 28.06.2024 passed by the
8 All. Mayashankar Vs. State of U.P. & Ors.
291
Director of Education (Secondary), U.P.
transferring the opposite party No.5Nityanand Mishra (opposite party No.6 in
Writ A No.5106 of 2023) from the post of
Principal, Raj Kumar Higher Secondary
School, Kubernath, Kushinagar, to the post
of Principal, Bharat Sewak Samaj Inter
College, Hathiyar, Varanasi in furtherance
of a proposal made by the Joint Director of
Education, Varanasi, which is under
Challenge in Writ A No.5106 of 2023.

4. As the controversy involved in both
the writ petitions revolves around the same
set of facts and involves similar grounds of
challenge and defence, both the writ
petitions are being decided by a common
judgment.

5. Briefly stated, the facts pleaded in
the writ petitions are that the petitioner -
Maya Shanker is the senior most teacher
working in Bharat Sewak Samaj Inter
College,
Hathiyar,
Varanasi
(herein
referred to as 'the College'). After
retirement of Principal of the College Dr.
Dinesh
Chaubey,
the
Committee
of
Management of the College had resolved
on 30.03.2018 to appoint the petitioner as
Officiating Principal of the College. His
signatures were attested by the District
Inspector of Schools. On 07.07.2018, the
Committee of Management of the College
had sent a requisition for the post of
Principal of the College to the District
Inspector of Schools. The District Inspector
of Schools had approved the petitioner's
appointment as Officiating Principal of the
College and had granted financial sanction
by means of an order dated 19.09.2018.

6. On 07.06.2019, the Secretary, U.P.
Secondary Education Services Selection
Board had issued a circular to all the
District Inspector of Schools in the State
informing that the procedure for receiving
requisitions for vacant posts had been
changed and with effect from 01.07.2019,
requisitions
would
be
accepted
only
through Online Requisition Portal and
through no other mode. Guidelines for
sending
requisitions
through
Online
Requisition Portal were attached to this
circular. Thereafter, a requisition through
Online Requisition Portal was also made
for the post of Principal of the College on
11.12.2021.

7. On 30.12.2022, the Joint Director of
Education
forwarded
an
application
submitted
by
Sri
Nityanand
Mishra,
Principal, Raj Kumar Higher Secondary
School, Kubersthan, Kushinagar to the post
of Principal of the College in question
stating that in furtherance of an application
submitted by Sri Nityanand Mishra, the
District Inspector of Schools has forwarded
the documents wherein it was mentioned
that a requisition for the post of Principal of
the College has been sent to U.P.
Secondary Education Services Selection
Board but the post has not been advertised.
The transfer application of Sri Nityanand
Mishra has been forwarded by Principal of
both the Colleges, the District Inspector of
Schools of both the Districts and the Joint
Director of Education, VIIth Division,
Gorakhpur. The Joint Director of Education
stated in the letter dated 30.12.2022 that it
is provided in the Government Order dated
27.01.2020 that although the transfers will
be made online, in special circumstances,
the Government will have power to make
transfer through offline method. This
proposal of the Joint Director of Education
has been challenged by the petitioner in
Writ A No. 5106 of 2023.

8. On 19.04.2023, this Court had
passed an order in Writ A No.5106 of 2023
292 INDIAN LAW REPORTS ALLAHABAD SERIES
stating that as the matter was pending
before
the
Additional
Director
of
Education, it would be appropriate that he
should hear the petitioner also in the matter
of request of transfer of the opposite party
No.6.

9. In compliance of the order dated
19.04.2023 passed in Writ A No.5106 of
2023, the Additional Director of Education
(Secondary)
passed
an
order
dated
16.5.2023
rejecting
the
petitioner's
representation against transfer of Nityanand
Mishra, which order has been challenged
by making amendment in Writ A No.5106
of 2023 and on 22.05.2023, this Court had
passed an interim order directing that the
post of Principal of the College shall not be
filled by transfer and it can only be filled
by regular selection by the Board.

10. The opposite party No. 6 had filed
Special Appeal No.462 of 2023 against the
interim order dated 22.05.2023, which was
dismissed by means of an order dated
06.07.2023.

11. On 12.06.2024, a Government
Order was issued regarding transfer of
Principals
and
Teachers
of
non
Government aided secondary schools and it
inter alia provided that while making
offline transfers, it will be ascertained that
the transfer order does not violate any order
passed by this Court. On 14.06.2024, the
Director of Education (Secondary) issued a
circular directing all the Regional Joint
Directors of Education (Secondary) and all
District Inspector of Schools to comply
with the aforesaid Government Order dated
12.06.2024.

12. On 28.06.2024, the Deputy
Director
of
Education
(Secondary-III)
passed an order transferring the opposite
party No.6 from Raj Kumar Higher
Secondary School, Kubernath to the
College in question at Varanasi, which
order has been challenged in Writ-A
No.10109 of 2024 mainly on the ground
that this transfer order was passed during
continuance of the interim order dated
22.05.2023 passed by this Court in Writ-A
No.5106 of 2023 as also in violation of the
conditions of the Government Order dated
12.06.2024 and that it would result in
dislodging
the
petitioner,
without
a
regularly selected candidate having been
appointed on the post in question.

13. On 16.07.2024., an order was
passed in Writ A No.10109 of 2024
wherein it was stated that:-

"5. It is clearly stated in last but
one paragraph of the aforesaid order that
the post of Principal of the institution
where
the
petitioner
is
working
as
Officiating Principal shall not be filled-up
by any transfer except by mode of regular
selection by the Board.

6. It is argued by learned counsel
for the petitioner that the transfer of the
opposite party no.5 from Kushinagar to the
institution where the petitioner is working
as Officiating Principal is per se illegal
and is in complete violation of the order
passed by this Court in Writ-A No. 5106 of
2023, which is quoted above.

7. In this view of the matter, the
opposite party no.2-Addtional Director of
Education (Secondary), U.P. Prayagraj, is
directed to file his personal affidavit
explaining
that
why
the
contempt
proceeding shall not be initiated against
him.

8. The aforesaid affidavit be filed
within a period of three days from today."
8 All. Mayashankar Vs. State of U.P. & Ors.
293

14. After passing of the aforesaid
order, the Additional Director of Education
(Secondary) passed an order on the same
date i.e. 16.07.2024 staying operation of
the order dated 28.06.2024 whereby the
opposite party No.6 had been transferred to
the post of Principal of the College and
making it subject to final outcome of Writ
A No.5106 of 2023 and this order dated
16.07.2024 was brought on record along
with a personal affidavit of Additional
Director of Education (Secondary) U.P.,
Prayagraj filed before this Court.

15. A counter affidavit has been filed
on behalf of Sri. Nityanand Mishra-
opposite party No.6 in Writ A No.5106 of
2023, by his son Akhilesh Kumar Mishra,
inter alia stating that Nityanand Mishra had
met with a major road accident on
31.05.2022, in which he sustained grievous
injuries in his spine, due to which he
became unable to stand on his legs and to
move on his own, as he has lost sensation
in both his lower limbs. He requires
wheelchair assistance for his daily routines
and the Doctors have advised that his
treatment / rehabilitation may stretch for a
considerably long period, during which he
would require proper care and treatment
with the help of his family members. Wife
of Sri. Nityanand Mishra is a permanent
Assistant Teacher (L.T. Grade) posted at
Varanasi. Sri. Nityanand Mishra is facing
extreme difficulty in living alone at
Kushinagar,
away
from
his
family
members who reside at Varanasi, because
of his aforesaid physical condition. The
State as well as Sri Nityanand Mishra have
stated in their counter affidavits that the
Government Order dated 27.01.2020 issued
regarding
transfers
of
Principal
and
Teachers of Government aided Institutions
inter alia provides that the post on which a
Teacher is seeking transfer, should not have
been
Advertised
by
U.P.
Secondary
Education Services Selection Board or U.P.
Education Service Selection Commission
although a requisition regarding the post
might have been sent.

16. In the rejoinder affidavit filed by
the petitioner, the aforesaid averments
made regarding the physical condition of
Sri. Nityanand Mishra due to the injuries
suffered by in an accident have not been
disputed.

17. The Additional Director of
Education (Secondary), U.P., Prayagraj has
taken into consideration the pleas taken by
all the parties concerned in the impugned
order dated 16.05.2023 and he has noted
that an offline requisition for the post of
Principal of the College was sent on
19.07.2019 and again an online requisition
was sent on 11.12.2021. The Selection
Board had published a list of 141 posts
requisitioned in the year 2021-22, which
requisitions were cancelled for various
reasons. Bharat Sewak Samaj Inter College,
Varanasi is mentioned at serial No.139 of
the list and the reason for cancellation of
the requisition is mentioned that the post in
question had already been requisitioned in
the year 2019-20.

18. On 11.01.2020, Secretary, U. P.
Secondary Education Services Selection
Board had sent a letter addressed to all the
District Inspector of Schools stating that as
a long period of time had elapsed since
online requisitions were received during the
year 2019-20 and 2021-22. Therefore, to
avoid any kind of disputes, it was decided
to verify the online requisitions, for which
purpose the requisition portal was being
opened for the period 11.01.2023 to
16.01.2023. One of the points to be verified
was whether the post has been filled by
294 INDIAN LAW REPORTS ALLAHABAD SERIES
way of promotion or was proposed to be
filled by transfer. Requisition for the post
in question was cancelled on this ground.
The Regional Joint Director of Education
informed
through
his
letter
dated
22.02.2023 that the requisition has not been
verified as it was proposed to be filled by
way of promotion.

19. The Additional Director of
Education rejected the representation by
stating that the petitioner was given charge
of Officiating Principal till a regularly
selected candidate joins the post. In the
cases of Prashant Kumar Katiyar and
Hari Pal Singh, this Court had held that
posts which have been requisitioned,
cannot be filled by any other manner but
requisition of the post in question has
already been cancelled and, therefore, the
facts of case are different from the facts of
the cases of Prashant Kumar Katiyar
and Hari Pal Singh.

20. In Prashant Kumar Katiyar Vs.
State of U.P. and Others 2013 (1) ADJ
523, a Full Bench of this Court has held
that: -

"The claim of a dependant as per
the third proviso to Section 16 of the 1982
Act read with Regulations 101 to 107 of
Chapter III of the Regulations framed
under the 1921 Act can be considered for
compassionate appointment on the post of
an Assistant Teacher (TGT grade) against
a vacancy that has been notified for being
filled up by direct recruitment under the
1982 Act read with the 1998 Rules framed
thereunder upto the stage of the last date
for receipt of application forms under the
advertisement, but not thereafter till the
selections are completed by the Board
followed
by
appointments
under
the
provisions aforesaid."

21. Following the decision of the Full
Bench in Prashant Kumar Katiyar
(Supra), a Division Bench of this Court
held in Hari Pal Singh versus State of
U.P.: (2016) 6 All LJ 203, that: -

"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.
8 All. Mayashankar Vs. State of U.P. & Ors.
295
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 right of the
Management to any stage beyond that for
adopting the mode of appointment by way
of transfer."

22. The learned counsel for the
petitioner has submitted that the proposal
for transfer of the opposite party No.6 as
well as his transfer has been made after the
post in question has been requisitioned and,
therefore, the transfer order is illegal and is
liable to be quashed.

23. Per contra, the learned counsel for
the opposite parties have submitted that
subsequent to passing of the judgments in
Prashant Kumar Katiyar and Hari Pal
Singh, the U. P. Education Services
Selection Commission Act, 2023 (U. P. Act
No. 15 of 2023) has been enacted with
effect from 17.10.2023. Section 31 (1) has
repealed
the
Uttar
Pradesh
Higher
Education Services Commission Act, 1980,
the Uttar Pradesh Secondary Education
Service Selection Board Act, 1982 and the
Uttar Pradesh Education Service Selection
Commission Act, 2019.

24. With the repeal of the Uttar
Pradesh
Secondary
Education
Service
Selection Board Act, 1982, the Uttar
Pradesh Secondary Education Services
Selection Board Rules, 1998, which were
framed under the aforesaid Act, also stood
repealed.

25. U. P. Education Services
Selection Commission Rules, 2023 have
been framed under the U. P. Education
Services Selection Commission Act, 2023.

26. Chapter V of the U. P. Education
Services Selection Commission Rules,
2023
deals
with
the
procedure
of
recruitment and Rule 28 falling in Chapter
V of the aforesaid Rules provides that the
appointing authority or the management or
the authorized officer shall ascertain the
number of vacancies as per the provisions
contained in Section 10 (1) of the Act and
shall notify the vacancies through the
Director (Higher Education) or Director
(Secondary Education) or Director (Basic
Education) or Director (Training and
Employment) or Director General, Atal
Awasiya Vidyalaya, as the case may be, to
the Commission in the manner prescribed
by the Rules.

27. Rule 28 (5) of the U. P. Education
Services Selection Commission Rules,
2023 provides that the vacancies which
have been notified, shall not be filled by a
solitary transfer; provided that if a solitary
transfer
is
necessary
in
special
circumstances, as far as possible, it shall be
brought to the notice of the Commission,
296 INDIAN LAW REPORTS ALLAHABAD SERIES
expeditiously and the post falling vacant
due to the solitary transfer shall be included
in the notified posts and this vacancy will
also be covered by the same selection
process. After commencement of the
selection process, no solitary transfer will
be made under any circumstance.

28. As the Rules in force at the time
when the case of Hari Pal Singh (Supra)
was decided do not exist any more, the
ratio laid down in the aforesaid case would
not apply to the present case, where the
Rules in force are different from the Rules
those were in force at the time of decision
of Hari Pal Singh's case.

29. In view of the foregoing
discussion, I am of the considered view
that under the U. P. Education Services
Selection
Commission
Rules,
2023,
there is no absolute prohibition against
filling up a vacant post of Principal by
transfer after a requisition for filling up
the vacancy has been sent, provided the
selection process has not commenced.
Therefore, there is no illegality in
transfer of Sri. Nityanand Mishra from
the post of Principal, Raj Kumar Higher
Secondary
School,
Kubernath,
Kushinagar, to the post of Principal,
Bharat Sewak Samaj Inter College,
Hathiyar, Varanasi.

30. Both the Writ Petitions lack merit
and the same are dismissed. It is needless to
say that as a result of dismissal of the Writ
Petitions, the interim orders passed in the
Writ Petitions stand discharged.
----------
(2024) 8 ILRA 296
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.08.2024

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ-A No. 5951 of 2024

Ravi Prakash Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
S.M. Singh Royekwar

Counsel for the Respondents:
C.S.C., Anindya Shastri

A. Service Law-Constitution of India,
1950-Article
226-petitioner
challenged
that transfer order issued during the
election notification period, claiming it
violated the Model Code of Conduct-The
transfer
was
executed
without
prior
approval
from
the
State
Election
Commission, which is mandatory during
such periods-Held, that any transfer order
issued
without
approval
during
the
election notification period is null and
void-The court quashed the impugned
transfer order, reinstated the petitioner to
his original post, and directed the State
Election
Commission
to
seek
an
explanation from the District Panchayat
Raj Officer for the violation of the Model
Code of Conduct.(Para 1 to 13)

The petition is allowed. (E-6)

List of Cases cited:

R.K. Mittal Vs St.of U.P. & anr..(2004) SCC
Online All 1772.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard.

2. This Court has passed order dated
31.07.2024, which reads as under:-

"1.
Heard
Sri
S.M.
Singh
Royekwar,
learned
counsel
for
the