# Moulabi Ram v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-18
- **Case number:** Writ A No. 11279 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moulabi-ram-v-state-of-u-p-ors-50966
- **Pages:** 10

## Headnote

A. Service Law - U.P. Secondary Education
Services Selection Board Rules, 1998 -
Rule 11 - Intermediate Education Act, 1921 -
Regulations 55 to 61 - Transfer of Principal -
Petitioner Moulabi Ram challenged transfer
order dated 30.06.2023 of respondent Ramyash
as Principal of Goverdhan Inter College, Jaunpur
- Requisition for direct recruitment sent on
16.04.2021 - Held, requisition sent by Manager
on 16.04.2021 valid despite being offline, as
procedural
irregularity
curable
and
no
substantial injustice caused - Government Order
dated 13.08.2021 prohibits transfer against
requisitioned vacancy - Requisition predates
transfer order, rendering it unsustainable -
Equity favors Moulabi Ram, an officiating
Principal, over Ramyash, a settled Principal -
Tata Chemical Ltd. Vs Commissioner of
Customs and Krishna Rai Vs Banaras Hindu
University relied upon for procedural compliance
- Transfer order quashed, Moulabi Ram's writ
petition
allowed,
Ramyash's
writ
petition
dismissed. (Para 12-20)

Writ petition of Moulabi Ram allowed; writ
petition
of
Ramyash
dismissed;
writ
4 All. Moulabi Ram Vs. State of U.P. & Ors.
331
petition of Mahatim Singh de-tagged for
separate hearing.

List of Cases cited:

## Text

330 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Court. We have remarked earlier
that if the judgment of acquittal in appeal
had
come
before
the
petitioner's
superannuation, he would surely be entitled
to reinstatement from the date of the
judgment in appeal. He would then also be
entitled to continuity of service, though not
for the back wages before the date of the
judgment of acquittal.

24. The facts here are hard and we do
not want to succumb to the temptation of
doing a fact-based justice, departing from
principle. It is indeed hard for the petitioner
that the judgment of acquittal came too
late. If it had come in time, not only the
petitioner
would
be
entitled
to
reinstatement, but reckoning his continuity
of service, also to his pension. That cannot
be done in this case, because the petitioner
can no more be reinstated in service. If that
cannot be done, no other consequence can
attach. This is a case where the petitioner
has hardly worked for a year and three
months in a temporary capacity, or as the
respondents say, on probation, though we
did not find any letter showing the
petitioner to be an appointee on probation.
The letter of appointment shows him to be
a temporary employee.

25. Be that as it may, since the
petitioner was never reinstated in service
and never worked, except the one year and
three months before the fateful day, when
he was caught accepting a bribe, a charge
of which he has been later on acquitted in
appeal, in the considered opinion of this
Court, no relief can be granted to the
petitioner. It is said that hard facts make
bad law, but we think that this should not
be permitted to happen.

26. In the result, this petition fails and
is dismissed.

27. Costs easy.
----------
(2024) 4 ILRA 330
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 11279 of 2023

Moulabi Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Samarath Singh, Ramesh Chandra
Tiwari, Sri V.K. Singh (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Naresh Chandra Tripathi, Suchita
Tripathi, Sri Trilok Nath Dubey

A. Service Law - U.P. Secondary Education
Services Selection Board Rules, 1998 -
Rule 11 - Intermediate Education Act, 1921 -
Regulations 55 to 61 - Transfer of Principal -
Petitioner Moulabi Ram challenged transfer
order dated 30.06.2023 of respondent Ramyash
as Principal of Goverdhan Inter College, Jaunpur
- Requisition for direct recruitment sent on
16.04.2021 - Held, requisition sent by Manager
on 16.04.2021 valid despite being offline, as
procedural
irregularity
curable
and
no
substantial injustice caused - Government Order
dated 13.08.2021 prohibits transfer against
requisitioned vacancy - Requisition predates
transfer order, rendering it unsustainable -
Equity favors Moulabi Ram, an officiating
Principal, over Ramyash, a settled Principal -
Tata Chemical Ltd. Vs Commissioner of
Customs and Krishna Rai Vs Banaras Hindu
University relied upon for procedural compliance
- Transfer order quashed, Moulabi Ram's writ
petition
allowed,
Ramyash's
writ
petition
dismissed. (Para 12-20)

Writ petition of Moulabi Ram allowed; writ
petition
of
Ramyash
dismissed;
writ
4 All. Moulabi Ram Vs. State of U.P. & Ors.
331
petition of Mahatim Singh de-tagged for
separate hearing.

List of Cases cited:

1. Tata Chemical Ltd. Vs Commissioner of
Customs; (2015) 11 SCC 628

2. Krishna Rai Vs Banaras Hindu University;
(2022) 8 SCC 713

(Delivered by Hon'ble Ajit Kumar J.)

1. Heard Sri V.K. Singh, learned
Senior Advocate assisted by Sri Ramesh
Chandra Tiwari, learned counsel for the
petitioner in Writ - A No. 11297 of 2023.
Sri Naresh Chandra Tripathi, learned
Advocate appearing for 5th respondent and
also petitioners' counsel in Writ - A No.
17926 of 2023 and Sri Trilok Nath Dubey,
learned Advocate appearing for Committee
of Management in both the petitions as well
as Sri P.K. Srivastava, learned Additional
Chief Standing Counsel for the State
respondent.

2. These three above captioned writ
petitions have been filed by Moulabi Ram,
Ramyash and Mahatim Singh respectively.
While Moulabi Ram is seeking a writ of
certiorari for quashing the order of transfer
dated 30.06.2023 in respect of Ramyash
impleaded as 5th respondent, Ramyash the
petitioner in his writ petition seeks a writ of
certiorari
quashing
the
order
dated
20.07.2023 putting in abeyance his transfer
order
upon
a
representation
dated
15.07.2023 of Moulabi Ram who is
impleaded as 7th respondent in his writ
petition. He further seeks a writ of
mandamus to give him joining as Principal
of Goverdhan Inter College, Muftiganj,
Jaunpur pursuant to the transfer order dated
30.06.2023. One Mahatim Singh who is
working as Assistant Teacher L.T. Grade in
the Institution in question, questions the
promotion of Moulabi Ram as Lecturer
(Sociology) as according to him on the date
of occurrence of the said vacancy i.e.
01.07.2007 he was not having experience
of five years' continuous regular service in
L.T. Grade and so also did not possess the
academic qualification as per Appendix -
A.

3. Looking to the facts pleaded by
respective parties in the writ petitions and
their grounds for relief claimed and as the
learned Advocates appearing for respective
parties agree, in my considered view also
the controversy between Moulabi Ram and
Ramyash is required to be decided in the
first instance. The transfer order of
Ramyash is under challenge in the petition
of Moulabi Ram and there is a prayer for
mandamus also in the writ petition of
Ramyash to give him joining. The order
putting in abeyance the transfer order of
Ramyash can be considered while deciding
these two petitions first and so far as
Mahatim Singh's writ petition is concerned,
it involves an entirely different issue and
therefore, it can be decided separately.

4. Coming to the writ petition of
Moulabi Ram, the facts pleaded are that on
account of regular Principal Bhaiya Lal
Yadav attaining the ate of superannuation
on 31.03.2021 he was appointed as
Officiating Principal of the Institution
w.e.f. 01.04.2021 and his signatures were
attested by the District Inspector of Schools
on 13.04.2021, however, for a short period
between
30.06.2022
to
20.08.2022
attestation of petitioner's signatures as
officiating Principal was put in abeyance
but then it was restored. It is pleaded in the
writ petition that, when the post of
Principal of the Institution substantively
fell vacant, a requisition was sent to the
District Inspector of Schools on 19.09.2020
332 INDIAN LAW REPORTS ALLAHABAD SERIES
for seeking direct recruitment by the Board
as per Rule 11(1) and 11(2) of the U.P.
Secondary Education Services Selection
Board Rules, 1998. Later on another
requisition was sent to the board through
the District Inspector of Schools on
16.04.2021. The transfer order of the 5th
respondent Ramyash came to be issued
only on 30.06.2023. Taking the legal plea
of the Government order dated 27.01.2021,
wherein transfer is not permissible in the
event post of the Principal has been
requisitioned, present petition was filed
challenging
the
transfer
of
the
5th
respondent dated 30.06.2023.

5. It transpires further that while this
writ petition was pending admission before
this
Court,
petitioner
Moulabi
Ram
approached the Additional Director of
Education (Secondary), U.P. by means of
representation dated 15.07.2023 to the
effect that since he has challenged the
transfer order and writ petition was listed
for hearing on 30.07.2023 the transfer order
may be stayed and the Additional Director
of Education (Secondary), U.P. on his own
stayed the transfer order vide order dated
20.07.2023, which led to the filing of writ
petition by Ramyash being Writ - A No.
17926 of 2023 placing reliance upon the
Government
Order
dated
14.06.2019
according to which if the requisition has
not been sent for the post of Principal to the
Board online then on the basis of report
regarding existence of vacancy, transfers
could be made.

6. The argument advanced by learned
Senior Advocate appearing for petitioner
Moulabi Ram is that the Government Order
dated 14.06.2019 has subsequently been
superseded by the Government Order dated
27.01.2021, which provides that even if the
requisition has been sent to the Board no
transfer can be made against such vacancy,
may be the vacancy does not stand
advertised on the date of consideration of
application for transfer. The other argument
raised is that requisition was duly sent for
the post of Principal of the Institution on
21.09.2019 itself and in the event it is
claimed to have not been sent by the
Management, the requisition was again sent
on 16.04.2021 for the second time, which
the State in its instruction given by the
District Inspector of Schools on 25.11.2023
has
admitted
to
have
received
on
23.04.2021. So in any case, there was a
requisition sent for appointment prior to the
transfer order dated 30.06.2023 and thus,
according to him, transfer was bad.

7. To justify the requisition sent on
16.04.2021 under the signatures of the
Manager upon prescribed form and with
details, it is contended that the offline
requisitions were being entertained by the
District Inspector of Schools and in this
regard a letter was issued by the office of
District Inspector of Schools on 19.08.2020
to all the Managers and Principals of the
recognized and aided Higher Secondary
and Intermediate Schools for sending
offline applications in triplicate within a
week. It is contended also that no letter was
received in the school/ college for sending
requisition online.

8. Per contra, Sri N.C. Tripathi,
learned
Advocate
appearing
for
4th
respondent Ramyash and petitioner in Writ
- A No. 17926 of 2023 contended that the
Additional
Director
of
Education
(Secondary) had written a letter to all the
District Inspector of Schools (first and
second) on 03.03.2020 that requisition
should be made qua available vacancy on a
prescribed format by 15.03.2020 as the
exercise was to be undertaken to process
4 All. Moulabi Ram Vs. State of U.P. & Ors.
333
transfer applications in terms of regulation
55 to 61 of Chapter III (as amended) of
Intermediate Education Act, 1921. The
seven point directives were appended to
this letter and therefore, the requisition was
to be sent meeting all the seven points by
the Manager and not by the Principal of the
Institution. So according to him the
requisition sent by the Principal of the
Institution on 19.09.2020 as is brought on
record, was neither by the competent
authority namely the Manager of the
Institution in terms of Rule 11 of 1998
Rules, nor was upon prescribed format
issued by the Additional Director of
Education.

9. In so far as the second requisition
sent by the Manager on 16.04.2021
received in the office of District Inspector
of Schools on 23.04.2021 is concerned, it
was argued that this requisition offline was
not permissible in law for the reason that
the Secretary of U.P. Secondary Education
Services Selection Board, Prayagraj had
already written letter on 02.12.2021 to all
the District Inspector of Schools of Uttar
Pradesh to direct that Institution to upload
their respective requisitions online between
03.12.2021 and 17.12.2021 when the
website would remain open and available.

10. According to him this letter was
further circulated by the District Inspector
of Schools to the Managers of the
recognized and aided Institutions and
therefore, offline requisition was not
entertainable.
It
was
submitted
that
according to the rules as applicable to the
Secondary Education Services Selection
Board, it can adopt mode and methodology
to
invite
and
entertain
applications,
inasmuch as, the amended regulations also
provided for entertaining online transfer
applications to be registered. In support of
the transfer order meeting the conditions as
prescribed under the relevant regulations,
Sri Tripathi submitted that after obtaining
the report from the District Inspector of
Schools regarding existence of substantive
vacancy in the Institution in question that
application of Ramyash for transfer came
to be expedited and his name got enlisted in
the combined list of transfers that was
issued on 30.06.2023. Sri Tripathi further
argued that merely because petitioner
Moulabi Ram had filed a writ petition
before this Court, it would not have
changed the circumstances either, in the
absence of any interim order in the writ
petition filed by Moulabi Ram. The
Additional
Director
of
Education
(Secondary) exceeded his authority in
putting in abeyance the transfer order of the
petitioner.

11. Having heard learned counsel for
the respective parties and their arguments
raised across the bar, the legal issue that
arises for consideration before this Court is
two fold:

(a) whether the two requisitions
made by the Principal and Manager of the
Committee
of
Management
of
the
Institution
namely
Goverdhan
Inter
College, Muftiganj, Jaunpur were valid
requisitions within the meaning and scope
of Rule 11 of 1998 Rules; and

(b) whether in the event of
requisitions sent to the Board through
proper channel for the post of Principal of
the Institution, the transfer can still be
made against such vacancy taking aid to the
regulations 59 to 61 of Chapter III of the
Intermediate Education Act, 1921.

12. In order to appreciate the
arguments of respective parties as to the
first point, I find it more appropriate to go
334 INDIAN LAW REPORTS ALLAHABAD SERIES
first through the rules qua determination
and notification of vacancies as prescribed
under rule 11 of 1998 Rules. For ready
reference rule 11 is reproduced hereunder:

"11.
Determination
and
notification of vacancies. - (1) For the
purposes of direct recruitment to the post of
teacher, the Management shall 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 hereinafter provided.

(2) (a) The statement of vacancies
for each category of posts to be filled in by
direct recruitment including the vacancies
that are likely to arise due to retirement on
the last day of the year of recruitment, shall
be sent in quadruplicate, in the pro forma
given in Appendix "A" by the Management
to the Inspector by July 15 of the year of
recruitment and the Inspector shall, after
verification from the record of his office,
prepare
consolidated
statement
of
vacancies of the district subjectwise in
respect of the vacancies of lecturer grade,
and group wise in respect of vacancies of
Trained graduates grade. The consolidated
statement so prepared shall, along with the
copies of statement received from the
Management, be sent by the Inspector to
the Board by July 31 with a copy thereof to
the Joint Director :

Provided
that
if
the
State
Government is satisfied that it is expedient
so to do, it may, by order in writing, fix
other dates for notification of vacancies to
the Board in respect of any particular year
of recruitment :

Provided further that in respect of
the vacancies existing on the date of the
commencement of these rules as well as the
vacancies that are likely to arise on June
30, 1998, the Management shall, unless
some other dates are fixed under the
preceding proviso, send the statement of
vacancies by July 20, 1998 to the Inspector
and
the
Inspector
shall
send
the
consolidated statement in accordance with
this sub-rule to the Board by July 25, 1998.

Explanation. - For the purposes of
this sub-rule the word 'groupwise' in
respect of tine Trained graduates grade
means in accordance with the following
groups, namely :

(a) Language This group
consists of the subjects of

Hindi, Sanskrit, Urdu,
Persian and Arabic;

(b) Science This group consists
of
the
subjects
of
Science
and
Mathematics;

(c) Art and Craft

(d) Music

(e) Agriculture

(f) Horne Science

(g) Physical Education

(h) General
This group consists
of the subjects not

 covered in any of the
foregoing groups.

(b) With regard to the post of
Principal
or
Headmaster,
the
Management shall also forward the
names of two senior most teachers, along
with copies of their service records
(including character rolls) and such
other records or particulars as the Board
may require, from time to time.

Explanation. - For the purpose of
this sub-rule "senior-most teacher" means
the senior-most teacher in tine post of the
highest
grade
in
tine
institution,
irrespective of total service put in the
institution.

(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
4 All. Moulabi Ram Vs. State of U.P. & Ors.
335
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."
(emphasis added)

13. Upon bare reading of aforesaid
provisions, I find that sub rule (1) of Rule
11 permits notification of vacancies to the
Board through the District Inspector of
Schools in the manner provided for. The
manner is given in sub rule (2) of Rule 11
of the Rules, 1998, according to which the
vacancies that are likely to arise due to
retirement on the last day of the year of
recruitment shall also be sent to the District
Inspector of Schools by July 15 of the year
of recruitment and then the District
Inspector of Schools after due verification
from the records of his office shall prepare
a consolidated statement of vacancies
subject wise and group wise of Lecturers
and TGT as the case may be and then
forward the same to the Board by 31st of
July with a copy thereof to the Joint
Director of Education. So in any case, the
determination of vacancy under Rule 10
read with Rule 11(1) and (2) by 15th July
all the vacancies that are likely to occur till
30th June next year would be sent to the
District Inspector of Schools on a proforma
prescribed under Appendix - A and that too
in triplicate. So the duty is cast upon the
Management to determine the vacancies
and forward the same and not upon the
Principal of the Institution. The second
thing that bornes out is that the vacancies
falling vacant in the year of recruitment by
30th June next also shall have to be
requisitioned and that too on format given
in Appendix - A of Intermediate Education
Act, 1921.

14. It is also well settled law that
when a thing is required to be done in a
particular manner, that thing should be
done in that manner alone. So, if the
statutory rules provide for intimating a
vacancy or in other words requisitioning a
vacancy for direct recruitment by a
particular authority then it should be done
by that particular authority only under his
signatures and still further, it should be on
the same format/ proforma as prescribed
for. In the case of Tata Chemical Ltd. v.
Commissioner of Customs (2015) 11
SCC 628, it has been settled by the
Hon'ble Supreme Court that "if the law
requires that something be done in a
particular manner, it must be done in that
manner, and if not done in that manner has
no existence in the eye of the law at all."
This has been reiterated by Supreme Court
in the case of Krishna Rai v Banaras
Hindu University (2022) 8 SCC 713).

15. Testing the first requisition
claimed by petitioner Moulabi Ram sent on
19.09.2020, I find that it does not bear
signatures of Manager at all. It had been
sent upon a common office pad of the
Principal and Manager of Goverdhan Inter
College, Muftiganj, Jaunpur but bore the
signature and seal of Principal only and the
proforma annexed as per Appendix - A,
did not bear any signature either of the
336 INDIAN LAW REPORTS ALLAHABAD SERIES
Principal or the Manager and so also the
certificates appended thereto regarding
vacancy falling vacant on 31.03.2021 and
that vacancy was not disputed one, had
been signed by the Principal only. Further,
I do not find there to be any compliance of
the provisions for sending two names of
senior most teachers of the Institution
along with the requisition and still further,
I do not find there to be any compliance of
the letter issued by the Additional Director
of Education (Secondary), U.P. dated
03.03.2020. While it could be said that the
letter dated 03.03.2020 was sent to the
District Inspector of Schools and was not
even marked to the Management but I do
not find the requisition to be valid enough
on the score of the prescribed procedure
and method given under Rule 11 of the
1998 Rules.

16. Coming to the second requisition
claimed to have been sent by the Manager
of the Institution on 16.04.2021 even
though details appended thereto have not
been annexed but it will be taken to have
been received in the office of the District
Inspector of Schools on 23.04.2021 as per
the admission made in the instructions
given by District Inspector of Schools
dated 25.11.2023. The requisition this
time of course bore the signatures of both
the
Manager
and
Principal
of
the
Institution. So while the requisition sent
on
19.09.2020
cannot
be
a
valid
requisition being singed by the Principal
only,
second
requisition
sent
on
16.04.2021 will be taken to have been sent
by the competent authority namely the
Manager. However, the issue that remains
to be resolved in order to hold requisition
dated 16.04.2021 to be valid, as to
whether the Manger was justified in
sending the requisition offline instead
online between 03.12.2021 to 12.12.2021
as per the directives issued on 02.12.2021
to all the District Inspector of Schools of
Uttar Pradesh. Rule 11(2) clearly stipulates
that the vacancies have to be intimated to
District Inspector of Schools who after due
verification shall send the same to the
Board but the requisition has to be sent by
15th July. Since vacancy in question was to
fall vacant on 31.03.2021, therefore,
vacancy was to be sent by 15.07.2020, as
1st July 2020 to 30th June 2021 will be the
recruitment year. As the recruitment year
starts from 1st July 2020 to the following
30th June 2021, the process had started to
consider
applications
for
transfer
of
available vacancies in the relevant financial
year if available vacancy was neither
requisitioned, nor advertised. However,
consideration had yet not started qua
application of transfer and any process if
was under way, validity of a transfer is to
be seen on the date of its issuance.
Admittedly transfer order was issued on
30.06.2023 and so it is to be seen as to
whether requisition had been made of the
post in question prior to this date. District
Inspector of Schools has admitted to have
received requisition on 23.04.2021, a date
much prior to transfer order. However, now
the legal issue is to be answered as to
whether requisition sent on 16.04.2021
received by District Inspector of Schools
on 23.04.2021 was a valid requisition
having been sent off line. The letter of the
District
Inspector
of
Schools
dated
19.08.2020
acknowledges
off
line
requisition provided thus:

"प्रेर्क,

सजला सवद्यालय सनरीक्षक,

जौनपुर।

सेवा में,

समस्त प्रबन्धक / प्रिानाचायथ
4 All. Moulabi Ram Vs. State of U.P. & Ors.
337

अशासकीय
सहायता
प्राप्त
/
उ०मा०सव०/ इण्टर कालेज

जौनपुर।

पत्रािंक / 3141-42
/2020-21

सदनािंक 19-08-2020

सवर्य- सदनािंक 31.03.2021 तक
सेवासनवृत्त हो रहे प्रिानाचायथ / प्रवक्ता / स०अ०
के ररक्त पद का असियाचन प्रेर्ण के सम्बन्ध में।

महोदय

उपयुथक्त सवर्यक के सम्बन्ध में
अवगत कराना है सक आपके सवद्यालय में सदनािंक
31.03.2021 तक सेवासनवृत्त हो रहे प्रिानाचायथ /
प्रवक्ता/ स०अ० के ररक्त पद का असियाचन
चयनबोडथ को प्रेसर्त सकया जाना है सजसके सलए
पूवथ में आप द्वारा माह अक्टूबर 2019 में
अॉ नलाइन असियाचन प्रेसर्त सकया गया र्ा के
असतररक्त 31 माचथ 2021 को सेवासनवृत्त होने
वाले प्रिानाचायथ / प्रवक्ता / स०अ० का सवर्यवार
/ आरक्षणवार असियाचन आफलाइन माध्यम से
सकस पद से ररक्त पद है का स्पष्ट उल्लेख करते
हुए (तीन प्रसतयो में) अिोहस्ताक्षरी कायाथलय में
एक सप्ताह के मध्य उपलब्ध कराना सुसनसश्चत
करें। प्रकरण असतमहत्वपूणथ एविं समयबद्ध है।

इसमें सकसी भी प्रकार का सवलम्ब
अपेसक्षत नहीिं है।

भवदीय

ह० अप०

(प्रवीण मसण सत्रपाठी)

सजला सवद्यालय सनरीक्षक

जौनपुर।
पृ०सिं०/ /2020-21
सदनािंकः

प्रसतसलसप-सिंयुक्त सशक्षा सनदेशक वाराणसी
मण्डल वाराणसी की सेवा में सूचनार्थ प्रेसर्त।

ह० अप०

सजला सवद्यालय सनरीक्षक

जौनपुर।"

17. It is true that Board required later
on online requisition, but merely because a
requisition had been sent to District
Inspector of Schools off line would not
have rendered it null and void. Rules, 1998
do not provide for any mode of sending
requisition but acknowledge its route via
office of District Inspector of Schools. The
District Inspector of Schools was a
responsible authority and it was his duty to
send it back to the Institution same day for
online sending or ought to have sent it
himself using his good offices. Such
intimation if was kept unforwarded by the
District Inspector of Schools, it could not
be presumed that there was no requisition
to justify action to fill up the vacancy by
transfer after receipt of requisition in the
office of District Inspector of Schools on
23.04.2021.

18. Offline requisition of a vacancy
for direct recruitment cannot be a ground
itself to hold that Board has no authority to
advertise such vacancy. It is only a
procedural
aspect
of
a
matter
and
substantive power do not get adversely
affected or diluted for such irregularity.
Procedural irregularities are curable until it
is established that someone's rights are
adversely affected to cause him substantial
injustice or may result in miscarriage of
justice. But for this hyper technical stand
that requisition was sent but only offline,
otherwise, had it been online as on
16.04.2021, no such transfer could have
been
made
on
30.06.2023.
It
was
respondent education authority's own stand
that online requisition of intimation was not
possible due to server problem and so
offline requisitions were invited. Transfer
is not a vested right as such. It depends
upon many factors and availability of
vacancy at a desired place is a sine qua
non. Requisition sent through the District
Inspector of Schools was not such a serious
irregularity
that
transfer
should
be
338 INDIAN LAW REPORTS ALLAHABAD SERIES
permitted to deny the claim of senior
teacher participating in the selection by
way of direct recruitment as an internal
candidate. Continuance of such a teacher
as an Officiating Principal would not
cause such a serious loss of opportunity to
the transferee Principal that if his transfer
is not sustained any miscarriage of justice
would take place.

19. The Government Order dated
13.08.2021 is to be read in supersession to
the Government Order dated 27.01.2020.
The earlier Government Order dated
27.01.2020 vide clause 12 very much
provided that "a transfer application can
be filed in respect of a vacancy which may
have been requisitioned but not advertised.
12- अध्यापक द्वारा सजस सवर्य के पद के प्रसत
स्र्ानान्तरण हेतु आवेदन सकया गया है वह पद
उत्तर प्रदेश माध्यसमक सशक्षा सेवा चयन बोडथ
अर्वा उत्तर प्रदेश सशक्षा सेवा चयन आयोग
द्वारा सवज्ञासपत नहीिं होना चासहए सकन्तु
असियासचत हो सकता है। " Whereas, the
Government
Order
dated
13.08.2021
provided that no transfer is to be made
against the post already requisitioned and
if it is found that the transfer has taken
place in respect of a vacancy already
requisitioned, such transfer would be
taken to be automatically cancelled.
Clause 4 of the Government Order dated
13.08.2021 runs as under:

"4- असियासचत पदोिं के सापेक्ष
स्र्ानान्तरण
नहीिं
सकया
जाना
है,
अतः
स्र्ानान्तरण आदेश सनगथत होने के उपरान्त
असियासचत पद के सापेक्ष स्र्ानान्तरण होने का
सिंज्ञान होने पर स्र्ानान्तरण आदेश स्वतः
सनरस्त समझा जायेगा।"

20. One must always bear in mind
that appointment with it entails a number
of rights and duties. Rights are to receive
pay perquisites, periodical promotional
pay scales and other allowance and duties
are to carry out work entrusted diligently
and honestly. Transfer is incidence of
service where posts are subject to routine
transfers but where cadre is Institution
wise or establishment wise, it all depends
upon available vacancies and agreement
of establishment where transfer is sought.
Such rights are recognized but are not
absolute and comparing the rights of
petitioner Moulabi Ram with that of Ram
Yash, equity finds favour with Moulabi
Ram. Petitioner Ramyash is a settled
Principal of an Institution and may get an
opportunity
of
transfer
to
another
Institution of choice in future but if
vacancy of institution in question is not
subjected
to
recruitment,
petitioner
Moulabi Ram will suffer more loss. So
basically, while I hold that requisition
was sent in respect of the vacancy in
question on 16.04.2021 was valid and so
also much prior to the transfer list and
order issued on 30.06.2023, I hold the
impugned
transfer
order
to
be
unsustainable and even equity favours
more claim of Moulabi Ram than that of
Ramyash.

21. In view of the above, writ
petition of Moulabi Ram being Writ - A
No. 11279 of 2023 succeeds and is
allowed. The order of transfer dated
30.06.2023
issued
in
favour
of
respondent Ramyash is hereby quashed.
In the circumstances writ petition of
Ramyash being Writ - A No. 17926 of
2023 is hereby dismissed. Writ petition
No. 7516 of 2023 filed by Mahatim
Singh is de-tagged and is directed to be
listed
separately
before
appropriate
bench.
----------
4 All. Anil Kumar Singh Vs. State of U.P. Ors.
339
(2024) 4 ILRA 339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 11555 of 2021

Anil Kumar Singh ...Petitioner
Versus
State of U.P. Ors. ...Respondents

Counsel for the Petitioner:
Sri Vimal Chandra Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - Back
Wages - Petitioner, a Routine Grade Clerk,
suspended on 05.10.2009 due to detention in a
criminal case (Case Crime No. 177 of 2009,
under Sections 396, 412, 201, 120-B IPC) -
Acquitted
on
30.01.2016,
reinSt.d
on
04.10.2016 - Claim for salary during suspension
period rejected vide order dated 01.05.2018 -
Held,
no
departmental
inquiry
initiated;
suspension
solely
due
to
detention,
a
circumstance beyond petitioner's control -
Principle of 'no work no pay' inapplicable as
petitioner was in jail, not on bail - Acquittal not
challenged in appeal - Entitled to full salary for
suspension period (19.08.2009 to 06.02.2016)
as per Raj Narain Vs U.O.I., distinguished from
cases involving departmental proceedings -
Impugned
orders
quashed,
respondents
directed to pay arrears. (Para 7-18)

Writ petition allowed.

List of Cases cited:

1. Brahma Chandra Gupta Vs U.O.I.; AIR 1984
SC 380

2. Raj Narain Vs U.O.I.; (2019) 5 SCC 809

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Vimal Chandra Mishra,
learned counsel for the petitioner and
learned Additional Chief Standing Counsel
for the State respondents.

2. Petitioner before this Court, who is
working as a Routine Grade Clerk in the
institution, namely Government Girls Inter
College, Fatehpur, is aggrieved by the
order dated 1st May, 2018, whereby
petitioner's claim for regular payment of
salary for the period he remained under
suspension on account of involvement in a
criminal case, has come to be rejected.

3. Briefly stated facts of the case are
that petitioner while working as Routine
Grade Clerk in the institution came to be
implicated in connection with criminal
offence registered as Case Crime No.- 177
of 2009 under Sections 396, 412, 201 &
120-B I.P.C., District - Fatehpur and
remained in jail from 9th August, 2009 to
1st August, 2010 and then continued in
detention from 1st August, 2010 on-wards
until he was finally released pursuant to the
judgment of the acquittal passed by the
Sessions Court dated 30th January, 2016 in
Sessions Trial No.- 606 of 2010, on 6th
February, 2016. As a consequence to the
implication of the petitioner in a criminal
case and detention in jail, he had also been
placed under suspension by the disciplinary
authority vide order dated 5th October,
2009, however, no disciplinary proceeding
was initiated ever against the petitioner and
after his acquittal in the criminal case and
consequentially being released from jail, he
came and joined the institution pursuant to
the order of reinstatement dated 4th
October, 2016 revoking his suspension.

4. It is further submitted by learned
counsel for the petitioner that since the
respondents did not proceed to hold