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

- **Citation:** (2025) 5 ILRA 396
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-07
- **Case number:** Special Appeal No. 727 of 2024
- **Bench:** Ashwani Kumar Mishra, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mayashankar-v-state-of-u-p-ors-53385
- **Pages:** 14

## Headnote

A. Service Law - UP Secondary Education
(Service Selection Boards) Act, 1982 -
Rules framed under Act of 1982 - Rule 11
-
Post
of
Principal
-
Power
of
appointment by way of transfer, extent of
- Requisition was sent after vacancy was
arisen - However, appointment by way of
transfer was made - Permissibility - Held,
once the requisition for direct recruitment
was
sent
to
the
Inspector,
by the
Management, in terms of rules 11 of the
rules framed under the Act of 1982, the
transfer of a teacher against such vacancy
was impermissible - Prashant Kumar
Katiyar' case relied upon. (Para 16)
B. Service Law - UP Education Service
Selection Commission Act, 2023 - Section
31(2) - Post of Principal - Appointment -
Requisition
was
already
sent
for
appointment - How far, such requisition is
saved under Act of 2023 - Held, the
determination
of
vacancies
and
its
intimation to the commission virtually
commences the process of recruitment in
these
institutions.
Sending
of
the
requisition to the board would, therefore,
continue to be saved under the Act of
2023 and the only change would be that
now the appointment will have to be
made by the commission in place of the
board. (Para 34)

Special Appeal allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,646 of 49,931. This is a partial read: ask again with offset=39646 for what follows._

396 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petitioners within a period of three
months from the date of presentation of a
copy of this order. Some of the persons
who are already getting pensions would be
entitled to re-determination of their pension
in terms of the above direction. However,
no recovery would be made from them.

25. In view of the above, these
appeals are disposed of.
----------
(2025) 5 ILRA 396
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2025

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Special Appeal No. 727 of 2024
With
Special Appeal No. 726 of 2024

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

Counsel for the Appellant:
Kailash Singh Kushwaha

Counsel for the Respondents:
Ashutosh Mani Tripathi, C.S.C., Rohit
Singh, Vijay Kumar Ojha

A. Service Law - UP Secondary Education
(Service Selection Boards) Act, 1982 -
Rules framed under Act of 1982 - Rule 11
-
Post
of
Principal
-
Power
of
appointment by way of transfer, extent of
- Requisition was sent after vacancy was
arisen - However, appointment by way of
transfer was made - Permissibility - Held,
once the requisition for direct recruitment
was
sent
to
the
Inspector,
by the
Management, in terms of rules 11 of the
rules framed under the Act of 1982, the
transfer of a teacher against such vacancy
was impermissible - Prashant Kumar
Katiyar' case relied upon. (Para 16)
B. Service Law - UP Education Service
Selection Commission Act, 2023 - Section
31(2) - Post of Principal - Appointment -
Requisition
was
already
sent
for
appointment - How far, such requisition is
saved under Act of 2023 - Held, the
determination
of
vacancies
and
its
intimation to the commission virtually
commences the process of recruitment in
these
institutions.
Sending
of
the
requisition to the board would, therefore,
continue to be saved under the Act of
2023 and the only change would be that
now the appointment will have to be
made by the commission in place of the
board. (Para 34)

Special Appeal allowed. (E-1)

List of Cases cited:
1. Prashant Kumar Katiyar Vs St. of U.P. & ors.
2013 (1) ADJ 523
2. Hari Pal Singh Vs St. of U.P. (2016) 6 All LJ
203
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. These appeals arise out of the
judgment and order of learned Single Judge
dated
13.8.2024,
whereby
two
writ
petitions filed by the appellant are decided.
Learned Single Judge has dismissed both
the writ petitions and vacated the interim
order granted earlier.

2. The controversy leading to filing
of the present appeal lies in a limited
factual scenario. The appellant herein was
appointed as lecturer in Bharat Sewak
Samaj Inter College, Hathiyar, Varanasi
(hereinafter referred to as the 'institution').
He was appointed as officiating principal of
the institution on 30.3.2018. His signatures
were also attested by the District Inspector
5 All. Mayashankar Vs. State of U.P. & Ors.
397
of
Schools
on
11.4.2018.
A
requisition was sent by the Managing
Committee of the institution for substantive
appointment to be made on the post of
principal
on
7.7.2018.
Although
the
requisition
was
sent
for
substantive
appointment but no advertisement was
issued. It is at this stage that the process
was initiated for transfer of the respondent
Nityanand Mishra, who as substantively
working as principal of Raj Kumar Higher
Secondary School, Kubernath, Kushinagar.
For
such
purposes
of
transfer
recommendation was made by the Joint
Director of Education on 30.12.2022. Two
subsequent orders have been passed in favour
of
the
contesting
respondent
by
the
educational authorities later in point of time.
The first order is of 16.5.2023, whereby the
Additional Director of Education Secondary
disposed of the representation made by the
appellant objecting to the resolution made by
the
Joint
Director
of
Education
recommending
transfer
of
contesting
respondent in the present institution. The
Additional Director of Education by this
order affirm the previous recommendation of
30.12.2022. A subsequent order of transfer
dated 28.6.2024 is passed by the Additional
Director of Education whereby contesting
respondent has been transferred to the
institution in question. These two orders were
the subject matter of challenge before the
learned Single Judge.

3. In the first writ petition i.e. WritA No.5106 of 2023 the recommendation of
the Joint Director of Education dated
30.12.2022 was assailed. This writ petition
was entertained and a detailed interim order
was passed on 22.5.2023, which is
reproduced hereinafter:-

"Heard
Sri
Kailash
Singh
Kushwaha,
learned
counsel
for
the
petitioner, learned Standing Counsel for
the State respondents, Sri Ramesh Chandra
Dwivedi, learned Advocate for Committee
of Management and Sri Ashutosh Mani
Tripathi, learned counsel for respondent
no. 6.

The controversy in the present
case
has
arisen
on
account
of
recommendation being made in favour of
6th respondent to be transferred as a
Principal of the Institution where the
petitioner
is
currently
working
as
officiating Principal.

The submission advanced by
learned counsel for the petitioner on the
earlier date was that since he was working
in the Institution as officiating Principal
from 2018 and the post has been
requisitioned to the Board for making
direct selection, he will lose the opportunity
to participate as a senior most teacher of
the
Institution
for
considering
his
candidature for selection in the event post
gets occupied by a regular Principal, may
be by way of transfer. He had argued that
the District Inspector of Schools had no
occasion to cancel the requisition already
forwarded to the Board in the light of Full
Bench judgment of this Court in the case of
Haripal Singh v. State of U.P. & 10 Ors,
2016 ADJ 622.

Taking notice of the aforesaid
facts, this Court had directed Additional
Director of Education to pass final order in
pending matter before him, vide order
dated 19.04.2023. Now the order has been
passed on 16.05.2023 which has been
brought on record by way of short counter
affidavit filed on his behalf. In the order
which has been passed on 16.05.2023 by
the District Inspector of Schools, the
ground taken is that on 11.01.2023 the
Secretary,
U.P.
Secondary
Education
Services Selection Board, Prayagraj had
issued directives to all the District
398 INDIAN LAW REPORTS ALLAHABAD SERIES
Inspector of Schools of the State that "since
in the matter of selection and appointment
time was being taken therefore, the proper
verification will be done of the requisition
sent online in between the period from
11.01.2023 to 16.01.2023 on eight points in
which one of the point was as to whether
the
requisition
was
sent
from
any
Institution or not and as to whether if
requisition
sent
suffers
from
any
irregularity and as to whether the post in
respect of which requisition has been sent
and transfer is being claimed upon has
already been filled up or not," the District
Inspector
of
Schools
on
16.01.2023
rejected the requisition of the post of
Principal sent from the Institution on
account of the fact that a transfer was
being considered.

Prima facie in my considered
view
such
a
rejection
of
already
requisitioned post by District Inspector of
Schools was not called for at all, nor the
import of directives issued by the Secretary,
U.P.
Secondary
Education
Services
Selection Board, Prayagraj can be so
construed as to empower the District
Inspector
of
Schools
to
cancel
the
requisition. All that was required to be
done by the District Inspector of Schools to
verify as to whether any such requisition
had been sent personally or not. Further, I
find that no irregularity has been cited in
rejecting the requisition for the post of
Principal in the petitioner's Institution. It
transpires further that the application of
6th respondent was moved offline only in
the month of November 2022 when the post
in question had already been requisitioned
and there was no order cancelling the same
except one order passed by District
Inspector of Schools dated 23.04.2022 that
the post since was already requisitioned,
the second time requisition was not
maintainable.

Matter requires consideration.

All the respondents are granted
four weeks' time to file counter affidavit.
Rejoinder affidavit, if any, may be filed
within two weeks thereafter.

List on 28.07.2023.

In the meanwhile until further orders
of this Court, it is hereby provided 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.

In the meantime, petitioner may
also file necessary amendment application
to challenge the order passed by the
Additional Director of Education on
16.05.2023."

4. In terms of the liberty granted
writ petition no.5106 of 2023 has been
amended so as to challenge the order dated
16.5.2023
and
also
challenge
the
recommendation/order dated 16.1.2023,
whereby the requisition sent on 7.7.2018 by
the Committee of Management itself has
been
cancelled
by
the
educational
authorities. The writ petition no.5106 of
2023 was pending, wherein interim order
was continuing when the subsequent order
of 28.6.2024 has been passed as a result of
which the contesting respondent has been
transferred to the institution concerned.
This order is the subject matter of challenge
in Writ-A No.10109 of 2024. Both the writ
petitions have been dismissed.

5. Thus aggrieved the appellant is
before this Court challenging the judgment
of the learned Single Judge.

6. Sri Ashok Khare, learned Senior
counsel, assisted by Sri K.S. Kushwaha,
learned counsel for the appellant submits as
under:-
5 All. Mayashankar Vs. State of U.P. & Ors.
399

(i) Once the requisition for
substantive appointment to be made on the
post of principal has been sent on 7.7.2018
the resolution of transfer by the Joint
Director of Education dated 30.12.2022
was impermissible in view of the Full
Bench judgment of this Court in the case of
Prashant Kumar Katiyar Vs. State of U.P.
and Others 2013 (1) ADJ 523 which has
been followed by a Division Bench in the
case of Hari Pal Singh vs. State of U.P.
(2016) 6 All LJ 203.

(ii)
The
report/order
dated
16.1.2023 is bad in law, inasmuch as the
requisition has been set at naught on the
ground that a recommendation for transfer
is made. Submission is that when the
transfer itself was impermissible such
recommendation for transfer could not have
formed the basis for cancellation of the
requisition.

(iii) The process of transfer was
initiated in terms of the regulations 55 to 58
of the regulations framed under Chapter III
of the U.P. Intermediate Education Act,
1921 (hereinafter referred to as the 'Act of
1921'). The process of recruitment was
initiated under the provisions of U.P.
Secondary Education (Service Selection
Boards) Act, 1982 (hereinafter referred to
as the 'Act of 1982') as well as rules framed
thereunder. Though the Act of 1982 stood
repealed and substituted by the U.P.
Education Service Selection Commission
Act, 2023 (hereinafter referred to as the 'Act
of 2023') yet, the actions taken under the
previous enactments of 1982 would clearly
be saved by virtue of Section 31(2) of the
Act. It is also urged that the rules framed
under the Act of 2023, particularly rule 28
would not confer any right upon the Director
to recommend transfer against a post already
requisitioned under the Act of 1982. It is,
therefore, submitted that the orders impugned
are bad in law.
7. Sri R.K. Ojha, learned Senior
counsel for the respondent, on the other hand,
submits that the requisition although could
not have cancelled on 16.1.2023 yet, such
requisition lost its effect with the introduction
of the Act of 2023. Provisions of the Act of
2023 have been highlighted before the Court
in order to contend that a distinct process of
direct recruitment is countenanced under the
Act of 2023 and, therefore, by necessary
implication the process of recruitment
initiated under the Act of 1982 would lose its
efficacy. This, learned counsel submits, is
particularly with reference to the requisition
sent under rule 11 of the rules framed under
the Act of 1982. Sri Ojha places heavy
reliance upon rule 28(5) of the rules framed
under the Act of 2023 to contend that the
power is recognized under the new enactment
with the Director to pass appropriate orders
of transfer and since such power has been
exercised while issuing the subsequent order
of 28.6.2024, as such the previous requisition
sent under the Act of 1982 cannot be relied
upon to question the order of 28.6.2024. He
also supports the reasoning assigned by
learned Single Judge to come to such
conclusion. It is also urged that since the
requisition was sent in 2018 and the year of
recruitment has since changed, therefore, the
previous requisition has otherwise lost its
relevance.

8. Learned State counsel submits
that the Act of 2023 clearly protects the
action taken under the previous Act of 1982
and, therefore, the fact that subsequent Act
has intervened by repealing the Act of
1982, the consequences flowing in terms of
Section 6 of the U.P. General Clauses Act,
1904 cannot be obliterated.

9. We have heard learned counsel
for the parties and have carefully perused
the materials placed on record.
400 INDIAN LAW REPORTS ALLAHABAD SERIES
10. At the very threshold we may
note that the substantive vacancy in the
institution has arisen on 1.4.2018. This
vacancy was substantive in nature and was
required to be filled by direct recruitment.
The process of recruitment was initiated by
the Committee of Management by sending
requisition on 7.7.2018. At this juncture it
would be worthwhile to refer to the scheme
of direct recruitment under the Act of 1982
as well as the rules framed thereunder.
Section 10 of the Act of 1982 provided the
procedure by which direct recruitment was
to be made in an institution. The
Management was required to determine the
vacancy existing or likely to fall vacant
during the year of recruitment and notify
the vacancy to the board in such manner
and to such officer or authority, as may be
prescribed. In cases other than the Head of
the institution the Management was also
required to specify the vacancies with
reference to the social category to which it
belong. The procedure for selection by
direct recruitment was to be prescribed by
virtue of sub-section 2 of section 10.
Pursuant to the Act of 1982 the rules have
been framed for securing the objective of
the Act of 1982. The determination and
notification of vacancy is an aspect which
was to be dealt with by rule 11. Rule 11(1)
provided that for the purposes of direct
recruitment to the post of teacher the
Management was to determine the number
of vacancies in accordance with sub-section
1 of section 10 and notify the vacancies
through the Inspector to the board in the
manner provided under rule 11. Specific
manner in which the vacancies had to be
notified has been specified under the rules.
Sub-rule 3 and 4 of rule 11 are also relevant
and are reproduced hereinafter:-

"(3). If, after the vacancies have
been notified under sub-rule (2), any
vacancy in the post of a teacher occurs, the
Management shall, within fifteen days of its
occurrence, notify to the Inspector in
accordance with the said sub-rule and the
Inspector shall within ten days of its receipt
by him send it to the Board.

(4). Where, for any year of
recruitment, the Management does not
notify the vacancies by the date specified in
sub-rule (2) or fails to notify them in
accordance with the said sub-rule, the
Inspector shall on the basis of the record of
his office, determine the vacancies in such
institution in accordance with sub-section
(1) of Section 10 and notify them to the
Board in the manner and by the date
referred to in the said sub-rule. They
vacancies to the Board under this sub-role
shall be deemed to be notified by the
Management of such institution."

11. The Act of 1982 primarily was
introduced for the purposes of making
appointment in the recognized institutions.
The conditions of service of teachers etc
were otherwise left to be regulated by the
provisions of the Act of 1921, whereunder
the institution itself was recognized.
Section 32 of the Act of 1982 clearly
provided that the provisions of the Act of
1982 shall prevail in respect of any
inconsistency with the provisions of the
Act of 1921.

12. It is well recognized that
transfer is an exigency of service. To what
extend and in what manner the teacher of
one institution could be transferred to
another institution is an exigency dealt with
by regulation 55 to 58 of the regulations
framed under Chapter III of the Act of
1921.
These
regulations
have
been
amended from time to time. Last such
amendment has been made on 7.7.2023.
The scheme of transfer enforced vide
5 All. Mayashankar Vs. State of U.P. & Ors.
401
notification dated 7.7.2023, contained in
regulation 55 to 58, would be relevant and
are reproduced hereinafter:-

 "55-(1) अल्पसंख्यि संस्थाओं से कर्न्ि
अशासिीय सहायता प्राप्त माध्यकमि कवद्यालयों में किसी अध्यापि
िे आिलाइि स्थािान्तरण िे प्रयोजि िे कलए प्रबन्धतन्त्र कवद्यमाि
ररकक्तयों िी संख्या और संस्था िे प्रधाि िे पद से कर्न्ि पद िी
कस्थकत में, उत्तर प्रदेश लोि सेवा (अिुसूकचत जाकतयों, अिुसूकचत
जिजाकतयों और अन्य कपछडे विों िे कलए आरिण) अकधकियम,
1994 िे अिुसार अिुसूकचत जाकतयों, अिुसूकचत जिजाकतयों और
अन्य कपछडे विों िे अभ्यकथभयों िे कलए आरकित िी जािे वाली
ररकक्तयों िी संख्या र्ी अवधाररत िरेिा और ररकक्तयों िी सूचिा
वेबसाइर् पर अपलोड किए जािे हेतु कजला कवद्यालय किरीिि िो
उपलब्ध िरायेिा।

(2) कजला कवद्यालय किरीिि ऐसी ररकक्तयों िा
सत्यापि िरेिा और संस्था में पंजीिृत छात्र संख्या िे आधार पर
पद र्रे जािे िे औकचत्य िो देखते हुए जिशकक्त िे अन्तिभत मान्य
ररकक्तयों िी सूचिा वेबसाइर् पर अपलोड िरायेिा। प्रकतबन्ध यह है
कि चयिबोडभ िे माध्यम से सीधी र्ती िे अन्तिभत अकधयाकचत पदों
िो उक्त वेबसाइर् पर अपलोड िहीं किया जा सिेिा।

(3) किसी अल्प संख्यि संस्था से कर्न्ि किसी
संस्था िा िोई स्थायी अध्यापि, कजसिे अन्तिभत सम्बद्ध प्राइमरी
अिुर्ाि में िायभरत अध्यापि र्ी सकम्मकलत है, जो किसी दूसरी
संस्था में स्थािान्तरण चाहता है, वेबसाइर् पर प्रदकशभत ररकक्त िे प्रकत
ऐसी शतों िे अधीि आिलाइि आवेदि िरेिा, जैसा कि राज्य
सरिार द्वारा समय-समय पर अपिे आदेश द्वारा कििभत किया जाये।

प्रकतबन्ध यह है कि 08 महत्वािांिी जिपद
(सौिर्द्र, चन्दौली, बहराइच, श्रावस्ती, बलरामपुर, फतेहपुर,
कचत्रिूर् कसद्धाथभििर) िा िोई अध्यापि अन्य जिपद में
स्थािान्तरण हेतु आवेदि िहीं िरेिा, किन्तु पारस्पररि स्थािान्तरण
िी कस्थकत में अन्य जिपद में स्थािान्तरण आवेदि िर सिेिा।

(4) उक्त आिलाइि आवेदि-पत्र िी कप्रन्र् आउर्
अध्यापि िे मामले में संस्था प्रधाि िो तथा संस्था प्रधाि िे मामले
में प्रबन्धि िो प्रस्तुत िरेिा।

56-जहााँ आवेदि पत्र संस्था िे प्रधाि िो प्रस्तुत
किया िया है, वहााँ वह उसे परीिणोपरान्त अपिी संस्तुकत िे साथ
किधाभररत अवकध िे अन्तिभत आिलाइि अग्रसाररत िरेिा तथा
आिलाइि आवेदि पत्र िी हाडभिापी संस्था प्रबन्धि िो प्रस्तुत
िरेिा।

57-(1) संस्था िा प्रबन्धि मामले िो प्रबन्धतन्त्र
िे समि रखेिा और प्रबन्धतंत्र कवचारोपरान्त अपिी अिापकत्त एवं
संिल्प-पत्र जारी िरेिा।

(2) प्रबन्ध सकमकत िी अिापकत्त/संिल्प-पत्र प्राप्त
होिे पर प्रबन्धि आवेदि पत्र िो आिलाइि अग्रसाररत िरेिा तथा
संिल्प-पत्र/अिापकत्त प्रमाण-पत्र िो अपलोड िरेिा।

(3) प्रकतबन्ध यह है कि किसी शैकिि सत्र में
िायभरत प्रवक्ता, सहायि अध्यापि एवं सम्बद्ध प्राइमरी अिुर्ाि में
पृथि-पृथि िायभरत िुल पदों िे सापेि 20 प्रकतशत से अकधि
अध्यापिों िे आवेदि पत्र स्थािान्तरण हेतु अग्रसाररत िहीं किए जा
सिेंिे। संस्था प्रधाि िे मामले में 20 प्रकतशत िी व्यवस्था प्रर्ावी
िहीं होिी।

(4) प्रबन्धि उक्त आिलाइि आवेदि पत्र िी
हाडभिापी, प्रबन्धतन्त्र िे संिल्प िी प्रकत कजसमें प्रबन्धतन्त्र िी
सहमकत इंकित िी ियी हो, सेवा-पुकस्तिा, चररत्रपंजी एवं अन्य
अकर्लेख जो आवेदि द्वारा आिलाइि आवेदि-पत्र में इंकित किया
िया है, िी तीि-तीि प्रकतयों में सम्बकन्धत कजले िे कजला कवद्यालय
किरीिि िो हाडभिापी र्ेजेिा।

58-किरीिि कवकियम 57 िे अधीि प्राप्त आवेदि
पत्र िो इस प्रयोजि िे कलए रखे िये रकजस्र्र में दजभ िरायेिा तथा
आवेदि द्वारा आिलाइि प्रस्तुत आवेदि पत्र में उकल्लकखत
सूचिाओं िा सत्यापि/परीिण िरते हुए वेबसाइर् पर आिलाइि
सम्बकन्धत संयुक्त कशिा किदेशि िो अग्रसाररत िरेिा तथा आवेदि
पत्र िी दो प्रकतयााँ समस्त संलग्ििों सकहत सम्बकन्धत संयुक्त कशिा
किदेशि िो प्रेकित िरेिा।"

13. The regulation 58 as it stood
prior to its amendment on 7.7.2023 and was
applicable on the date of passing of the
resolution
by
the
Joint
Director
of
Education on 30.12.2022 is also reproduced
hereinafter:-

"58-किरीिि कवकियम 57 िे अधीि प्राप्त
आवेदि पत्र िो इस प्रयोजि िे कलए रखे िये रकजस्र्र में दजभ
िरायेिा और उसे जहााँ वह संस्था कजसमें स्थािान्तरण चाहा िया हो
उसिी अकधिाररता िे र्ीतर कस्थत हो, वहााँ वह संस्था में पद ररक्त
होिे एवं अकधयाकचत ि होिे िी पुकष्ट िरिे िे पश्चात किधाभररत वेब
साइर् पर आि लाइि मण्डलीय संयुक्त किदेशि िो अग्रसाररत िरेिा
तथा हाडभ िापी र्ी र्ेजेिा।"
402 INDIAN LAW REPORTS ALLAHABAD SERIES
14. The applicable provisions of the
Act of 1982 as well as the provisions
relating to transfer of teacher from one
institution
to
another
came
up
for
consideration before a Full Bench of this
Court in Prashant Kumar Katiyar (supra).
To
what
extent
transfer
would
be
permissible after the requisition has been
sent for filling up of the post fell for
determination before the Full Bench. The
Full Bench after noticing the scheme of the
Act held as under in para 38 to 41 of the
judgment:-

"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 de-termination.

39. To our mind, the function of
the management and the District Inspector
of Schools, therefore, has to follow this
procedure and it is trite law that if a statute
requires a thing to be done in a particular
manner then it should be done in that
manner alone and not otherwise. The
procedure under the Act and Rules is
mandatory and it has to be done in that
manner alone. Reference be had to Para 20
and 23 of the division bench judgment in
the case of Km. Poonam v. State of U.P.,
2008(1) at ADJ 273 (DB) and to Para 24 of
the decision in the case of U.P. Secondary
Education Service Selection Board v. State
of U.P., 2011 (3) ADJ 340. The rules have
been framed consciously by making a
provision of limited alteration in the
determination by adding to the vacancies
on account of any fresh occurrence during
the year of recruitment itself. Thus
impliedly 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 Rules. The
requisition to fill up the vacancies after
having sent to the Board therefore becomes
unalterable as the Board proceeds with the
advertisement under Rule 12 by publishing
the vacancy in accordance with reservation
rules and in accordance with the subjectwise and group-wise vacancies against
which appointments are to be made inviting
applications from candidates giving their
preference of the institution which choice
has to be indicated by the candidate. 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.

40. We would also like to put a
note of caution for the District Inspector of
Schools while performing his duty of
verification
of
the
determination
of
vacancies. There can be cases where the
management
deliberately
modifies
a
requirement in the name of extending
benefit to some candidate/teacher who may
be desirous of seeking promotion but
otherwise not eligible within the year of
recruitment. The management can withhold
such information and it is at this stage that
5 All. Mayashankar Vs. State of U.P. & Ors.
403
the District Inspector of Schools has to
exercise his powers under sub-rule (4). The
management at times may not cooperate
with the District Inspector of Schools and
therefore the District Inspector of Schools
has to determine the vacancy as per the
records available in his office and inform
the Board. The responsibility therefore
rests on the District Inspector of Schools to
undertake this exercise by putting the
management to clear notice during the year
of recruitment itself. The District Inspector
of Schools on coming to know of any
additional vacancy if any that arises or the
management
having
withheld
such
information is obliged to take action forth
with and disallow the management from
taking any undue advantage in such
situations. The vacancy that has occurred
during the year of recruitment has to be
mandatorily informed as noted hereinabove as no selection can be held except
through the Board.

41. Once it is held that the power
the management and the District Inspector
of
Schools
after
determination,
and
intimation to the Board, to re-introduce any
alteration
is
taken
away
then
the
management cannot be given the authority
to adopt any other mode of recruitment."

15. The judgment in Prashant
Kumar Katiyar (supra) was later interpreted
by some of the learned Single Judges to
apply till such time as the advertisement is
not issued. Learned Single Judges took the
view that the embargo in making of transfer
in terms of the Full Bench judgment would
be attracted once the process of selection
has
commenced
with
issuance
of
advertisement. This view was reversed by a
Division Bench of Lucknow Bench in Hari
Pal Singh (supra). Relevant passage from
the judgment of Hari Pal Singh (supra) in
para 15 and 16 are reproduced hereinafter:-

"15. On a consideration of the
ratio of the Full Bench in the case of
Prashant Kumar Katiyar (2013 (3) ALJ
658) (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 v.
State of U.P. and others [2007 (3)
UPLBEC 2497] and Smt. Amita Sinha v.
State of U.P. and others [2008 (4) ESC
2799] : (2009 (1) ALJ 611) 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 con-cluded 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 (2013
(3) ALJ 658) (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.
404 INDIAN LAW REPORTS ALLAHABAD SERIES
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
its 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. 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."

16. In view of the position in law
having been settled by the Full Bench of
this Court in Prashant Kumar Katiyar
(supra) as clarified in Hari Pal Singh
(supra) it became abundantly clear that
once the requisition for direct recruitment
was sent to the Inspector, by the
Management, in terms of rules 11 of the
rules framed under the Act of 1982 the
transfer of a teacher against such vacancy
was impermissible.

17. The regulation 58 as it stood
prior to its amendment on 7.7.2023 also
provided in clear terms that an application
for transfer could be entertained only if the
requisition had not been sent. There was
thus no scope for any confusion on this
aspect of the matter.

18. In light of the discussions
aforesaid, we find that the requisition since
was already sent for direct appointment to
be made against the post of principal in the
institution on 7.7.2018 it was not open for
the Joint Director of Education to have
made any recommendation for transfer of
the contesting respondent to the institution
concerned. What is further surprising is that
the authorities misconstrued the statutory
5 All. Mayashankar Vs. State of U.P. & Ors.
405
scheme and erroneously came to the
conclusion
that
just
because
recommendation for transfer had been
made, therefore, the requisition for direct
appointment itself had become invalid.
This erroneous interpretation is clearly
reflected from the order passed by the
educational authorities on 16.1.2023, which
is quoted hereinafter:-

"अद्धति कस्थकत

Final rejected by DIOS

Reason- अकधयाकचत संस्था िा पद स्थािान्तरण
से र्र जािा अथवा शासि द्वारा स्थािान्तरण प्रस्ताकवत हो जािे िे
िारण

Rejection Date 16.1.2023"

19. In view of our discussions held
above, we have no difficulty in holding that
the recommendation made by the Joint
Director of Education in favour of the
contesting respondent on 30.12.2022 as
well as the decision of the authorities taken
on 16.1.2023 holding the requisition sent
on 7.7.2018 for direct recruitment to have
become invalid are unsustainable. Contrary
view taken by the learned Single Judge is
clearly based on misconstruction of the
statutory scheme and, therefore, cannot be
approved of.

20. The position, however, has
undergone a change with the repeal of the
Act of 1982 as well as introduction of the
new Act of 2023. We are, therefore,
required to consider as to what would be
the effect of the requisition sent earlier
under the previous regime as well as the
action of the authorities in transferring the
contesting respondent to the institution
concerned.

21. So far as the Act of 2023 is
concerned, it makes no reference to
transfer. The Act of 2023 is also an act
providing for appointments to be made in a
variety of institutions including secondary
education. This Act of 2023 is applicable in
the facts of the present case. Section 10 of
the Act of 2023 provides for determination
of vacancies, requisition and selection
procedure. Section 10 of the Act of 2023 is
reproduced hereinafter:-

"10. Determination of Vacancies,
Requisition, and Selection Procedure

(1) For the purpose of making an
appointment of a teacher or instructor by
direct
recruitment,
the
Appointing
Authority or Management or Authorized
Officer shall determine the number of
vacancies existing or likely to fall vacant
during the year of recruitment and, in the
case of a post other than the post of head of
the institution, also determine the number
of vacancies to be reserved for the
candidates belonging to the Scheduled
Castes, the Scheduled Tribes and Other
Backward Classes of citizens in accordance
with the Uttar Pradesh Public Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994 (U.P. Act no. 4 of 1994),
and persons belonging to economically
weaker sections in accordance with the
Uttar Pradesh Public Services (Reservation
for Economically Weaker Sections) Act,
2020 (U.P. Act no. 10 of 2020) and other
directions issued by the Government from
time to time, and notify the vacancies to the
Commission in such manner and through
such officer or authority as may be
prescribed. The Commission shall decide
the eligibility and accordingly advertise the
vacancies received in the manner as may
be prescribed.

(2) The procedure of selection of
candidates for direct recruitment to the
posts of teachers or instructors shall be
such as may be prescribed.
406 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Regarding appointment in
religious
and
linguistic
minority
educational institutions for maintaining
quality of education, process of selection
shall be completed by compulsorily inviting
educationist of that particular religion and
language (having knowledge of theology
and culture) as experts."

22. There are other two provisions
under the Act of 2023 which requires
consideration in the facts of the present
case. The first is Section 30 of the Act of
2023 which provides for overriding effect
of the Act of 2023 over the provisions of
the Act of 1921. This provision in terms is
similar to the provisions contained under
Section 32 of the previous of the Act of
1982. Section 31 provides for repeal and
savings. Sub-section 1 of Section 31
provides for repeal of the Act of 1982 apart
from certain other enactments with which
we are not currently concerned. Subsection 2 and 3 of Section 31 are relevant
and are reproduced hereinafter:-

 "(2)
Notwithstanding
such
repeal, anything done or any action taken
under the Acts referred to in sub-section (1)
shall be deemed to have been done or taken
under this Act, as if the provisions of this
Act were in force at all material times.

(3) Save as otherwise provided in
this Act, the repeal of the Acts referred to
in sub-section (1) shall not have an adverse
effect on the general application of section
6 of the Uttar Pradesh General Clauses
Act, 1904 (U.P. Act no. 1 of 1904) in
relation to the enforcement of provisions."

23.
Before
adverting
to
the
implications
flowing
from
the
above
provisions we would like to refer to one
provision from the rules of 2023, framed
under the Act of 2023. Rule 28 of the rules of
2023 falls in Chapter V which deals with
procedure
of
recruitment.
Rule
28
contemplates determination and notification
of vacancies. Though we are primarily
concerned with sub-rule 5 of rule 28 but as
other provisions of such rule may also have
relevance, therefore, we deem it appropriate
to reproduce rule 28 in its entirety:-

"28. ररतक्तयों का अविारण और अतिसूतचि तकया
र्जाना

(1) तनयुतक्त प्रातिकारी अिवा प्रबन्द्ििांत्र अिवा
प्रातिकृि अतिकारी, सीिी भिी के प्रयोर्जन से अतितनयम की िारा
10 की उपिारा (1) के अनुसार ररतक्तयों की सांख्या का अविारण
करेगा और ररतक्तयों को, यिातथिति, तनदेशक (उच्च तशक्षा) या
तनदेशक (माध्यतमक तशक्षा) या तनदेशक (बेतसक तशक्षा) या तनदेशक
(प्रतशक्षण एवां सेवायोर्जन) या महातनदेशक, अटल आवासीय तवद्यालय
के माध्यम से आयोग को यहाां दी गयी रीति से अतिसूतचि करेगा

(2) सीिी भिी द्वारा भरे र्जाने वाले प्रत्येक श्रेणी के पद
के तलए भिी के वषथ के अतन्द्िम तदनाांक को सेवातनवृतत्त के कारण होने
वाली सम्भातवि ररतक्तयों को सतम्मतलि करिे हुए तनयुतक्त प्रातिकारी
अिवा प्रबन्द्ििांत्र अिवा प्रातिकृि अतिकारी द्वारा ररतक्तयों का तववरण
भिी के वषथ की 15 र्जुलाई िक उपतनयम (1) के अिीन प्रातिकृि
अतिकारी को भेर्जा र्जायेगा और प्रातिकृि अतिकारी अपने कायाथलय के
अतभलेखों से सत्यापन करने के पश्चाि प्रत्येक श्रेणी के पदों की ररतक्तयों के
बारे में तवषयवार एवां आरक्षण श्रेणीवार ररतक्तयों का समेतकि तववरण िैयार
करेगा। इस प्रकार िैयार तकया गया समेतकि तववरण प्रातिकृि अतिकारी
द्वारा उसी भिी वषथ के 31 र्जुलाई िक आयोग को भेर्जा र्जायेगा।

परन्द्िु यह तक यतद रायय सरकार का समािान हो र्जाये
तक ऐसा करना समीचीन है िो वह तलतखि आदेश द्वारा तकसी तवशेष
भिी के वषथ के सांबांि में आयोग को ररतक्तयााँ अतिसूतचि तकये र्जाने के
तलए कोई अन्द्य तदनाांक तनयि कर सकिी है।

(3) यतद, उप-तनयम (2) के अिीन ररतक्तयों के
अतिसूतचि तकये र्जाने के पश्चाि अध्यापक अिवा अनुदेशक के
तकसी पद पर कोई ररतक्त होिी है, िो तनयुतक्त प्रातिकारी अिवा
प्रबन्द्ििांत्र अिवा प्रातिकृि अतिकारी इसके होने के पन्द्रह तदन के
भीिर उक्त उपतनयम के अनुसार प्रातिकृि अतिकारी को अतिसूतचि
करेगा और प्रातिकृि अतिकारी उसे प्राप्त करने के दस तदन के भीिर
आयोग को भेर्ज देगा।

 (4) र्जहााँ, भिी के तकसी वषथ के तलए तनयुतक्त
प्रातिकारी अिवा प्रबन्द्ििांत्र अिवा प्रातिकृि अतिकारी, उप तनयम
(2) में तवतनतदथष्ट तदनाांक िक ररतक्तयाां अतिसूतचि नहीं करिा या
5 All. Mayashankar Vs. State of U.P. & Ors.
407
उक्त उपतनयम के अनुसार उन्द्हें अतिसूतचि करने में असिल रहिा है
िो प्रातिकृि अतिकारी अपने कायाथलय के अतभलेख के आिार पर
अतितनयम की िारा 10 की उपिारा (1) के अनुसार ऐसी सांथिा
में ररतक्तयों को अविाररि करेगा और उक्त उपतनयम में तनतदथष्ट रीति
से और तदनाांक िक आयोग को अतिसूतचि करेगा।

थपष्टीकरण-इस उपतनयम के अिीन आयोग को
अतिसूतचि की गई ऐसी ररतक्तयाां सांथिा के तनयुतक्त प्रातिकारी अिवा
प्रबन्द्ििांत्र अिवा प्रातिकृि अतिकारी द्वारा अतिसूतचि की गयी
समझी र्जायेगी।