# Rajiv Kumar v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-01
- **Case number:** Writ-A No. 12611 of 2024
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajiv-kumar-v-state-of-u-p-ors-51179
- **Pages:** 9

## Headnote

A. Service Law - UP Education Service
Section
Commission
Act,
2023
-
Establishment of an unified Commission -
Object - Idea for setting up a unified
commission was due to the difference in the
level of efficiency related to selection by the
above named Commission/Institution, as
the quality of selection of teachers was
affected, there was no uniformity in the
process of selection, timely selection of
teachers was not being done, and there
were several vacant posts of teachers in
various
institutions,
which
adversely
affected the education/training of the
students/trainees in the St.. (Para 6)

B. Service Law - UP Education Service
Section Commission Act, 2023 - Section
31 - Repeal and Saving clause - UP
Secondary Education Service Selection
Board Act, 1982 - C/M had already sent
the requisition to the Board in the year
2019 - Sub-section (2) of Section 31,
which is a non obstante clause, saves all
those
action
taken
and
proceedings
initiated under Act of 1982, and it shall be
deemed to have been done or taken under
the Act of 2023. The saving clause of
Section 31 clearly saves all the action
which were done pursuant to the Act of
1982 - Additional Director did not have the
power to proceed with the single transfer
taking benefit of the proviso to sub-rule (5)
of Rule 28. (Para 18, 19 and 23)

Writ allowed. (E-1)

List of Cases cited:

## Text

332 INDIAN LAW REPORTS ALLAHABAD SERIES
25. It is also directed that the
enquiry may be concluded against the
petitioner within a period of three months
form the date a certified copy of this order
is produced before the competent authority.
----------
(2024) 10 ILRA 332
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-A No. 12611 of 2024
Alongwith
Writ-A No. 11436 of 2024

Rajiv Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vinod Kumar Singh

Counsel for the Respondents:
C.S.C., Sankalp Kumar, Sharad Chandra

A. Service Law - UP Education Service
Section
Commission
Act,
2023
-
Establishment of an unified Commission -
Object - Idea for setting up a unified
commission was due to the difference in the
level of efficiency related to selection by the
above named Commission/Institution, as
the quality of selection of teachers was
affected, there was no uniformity in the
process of selection, timely selection of
teachers was not being done, and there
were several vacant posts of teachers in
various
institutions,
which
adversely
affected the education/training of the
students/trainees in the St.. (Para 6)

B. Service Law - UP Education Service
Section Commission Act, 2023 - Section
31 - Repeal and Saving clause - UP
Secondary Education Service Selection
Board Act, 1982 - C/M had already sent
the requisition to the Board in the year
2019 - Sub-section (2) of Section 31,
which is a non obstante clause, saves all
those
action
taken
and
proceedings
initiated under Act of 1982, and it shall be
deemed to have been done or taken under
the Act of 2023. The saving clause of
Section 31 clearly saves all the action
which were done pursuant to the Act of
1982 - Additional Director did not have the
power to proceed with the single transfer
taking benefit of the proviso to sub-rule (5)
of Rule 28. (Para 18, 19 and 23)

Writ allowed. (E-1)

List of Cases cited:

1. Prashant Kumar Katiyar Vs St. of U.P. & ors..;
2013(1)ADJ 523 (FB)

2. Hari Pal Singh Vs St. of U.P. & ors..; 2016 (8)
ADJ 622

3. Writ A No. 5106 of 2023; Mayashankar Vs St.
of U.P. & ors.. decided on 13.08.2024

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1.
The
question
which needs
adjudication by this Court, raised through
these two petitions are as to "Whether once
the requisition has been sent by the
Committee of Management to the U.P.
Secondary Education Service Selection
Board (hereinafter referred to as "the
Board") in terms of sub-rule (4) of Rule 11
of U.P. Secondary Education Services
Selection Board Rules, 1998 (hereinafter
called as "Rules of 1998") the post of
Principal in an intermediate institution can
be filled by way of transfer or the senior
most teacher officiating as a Principal is to
continue till a duly selected candidate is
sent by the Board."

2. Further, upon the enactment of
Uttar Pradesh Education Service Section
10 All. Rajiv Kumar Vs. State of U.P. & Ors.
333
Commission Act, 2023 (hereinafter called
as "Act of 2023") enforced on 17.08.2023
published in official gazette on 21.08.2023
and the Uttar Pradesh Education Service
Selection
Commission
Rules,
2023
(hereinafter called as "Rules of 2023")
having been enforced from 13.12.2023,
whether anything done or action taken in
pursuance of Rules of 1998 to continue or
not.

3. The question relating to
intimation of vacancy to the Board and
cessation of power to fill up the vacancy by
transfer was before the Full Bench in case
of Prashant Kumar Katiyar vs. State of
U.P. and others 2013(1)ADJ 523 (FB).
The Full Bench found that once the
procedure as per Rule 11(4) was followed
and necessary intimation was given to the
Board, there vest no power to fill up the
vacancy by transfer. Relevant paras 38 to
41 of the judgment are extracted hereas
under :

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

 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 Vs. State of U.P.
2008 (3) AWC Pg. 2852 and to Para 24 of
the decision in the case of U.P. Secondary
Education Service Selection Board Vs.
State of U.P. 2011 (3) ADJ Pg. 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 subject-wise 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
334 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
forthwith 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
of the management and the District
Inspector of Schools after determination,
and intimation to the Board, to reintroduce any alteration is taken away then
the management cannot be given the
authority to adopt any other mode of
recruitment."

4. The matter again came up
before Division Bench of this Court in case
of Hari Pal Singh Vs. State of U.P. and
others, 2016 (8) ADJ 622 where the Court,
relying upon the judgment of Full Bench
rendered in Prashant Kumar Katiyar
(supra), held that logic of initiation of
selection process has to be distinguished in
the present process of recruitment where
the initiation of determination of vacancy is
relevant for the purpose of choosing the
mode of recruitment. The Court further
held
that
once
determination
and
notification process is either made or there
is a failure on the part of management to do
so, then the DIOS has to perform his duty
as per Rule 11(4). Once this contingency
has occurred, then the option of the mode
to recruit by transfer is not available.
Relevant paras 15, 16 and 17 of the
judgment are extracted hereas under :

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

 16. We are unable to uphold the
said view of the learned Single Judge,
inasmuch as it appears that the learned
10 All. Rajiv Kumar Vs. State of U.P. & Ors.
335
Single Judge has concluded that the
process of direct recruitment starts with the
issuance of advertisement and in such a
situation, prior to that, the process of
appointment by way of transfer would be
permissible. The ratio of the Full Bench in
the case of Prashant Kumar Katiyar
(supra) in paragraphs 38, 39, 40 and 41
has clearly concluded that the power of the
Management or the District Inspector of
Schools or even the authority which is to
give effect to any transfer cannot proceed
to adopt any other mode of recruitment
after the steps taken for determination and
notification as per Rule 11 of the 1998
Rules. It has also been held that the
alteration of any such determination is not
permissible and cannot be reversed. This
has been reiterated in paragraph - 39 of
the decision. Not only this in paragraph -
40, the Full Bench also obliges the
Committee and the District Inspector of
Schools to fulfill their obligations as per
Rule 11 for determination and intimation of
vacancies. The ratio therefore of the Full
Bench read with the aforesaid Rules is
clearly to the effect that the authorities,
who are obliged to fill up the vacancies
occurring in the year of recruitment, have
to mandatorily perform their function of
determining and notifying the vacancy. The
failure by the Management or the District
Inspector of Schools to act as per Rule 11
of the 1998 Rules would therefore not
generate a right in favour of any person to
seek transfer or even in the Committee of
Management to defeat the very purpose of
Rule 11 of determining or intimating the
vacancies to the Selection Board for direct
recruitment.
The
Committee
of
Management no doubt has the right to
select the mode of recruitment when it has
to be filled up directly in the event it has an
option from a candidate seeking transfer.
However, this conscious decision of the
Committee of Management to adopt a
particular mode has to be taken within the
time frame as provided under Rule 11 of
the 1998 Rules. If the Committee of
Management is allowed to violate the time
schedule, then it would be allowing the
Committee of Management to have a free
play to choose to determine it's mode of
recruitment at any time which is not the
purpose of the Rules. For that matter,
under Sub-Rule (4) of Rule 11, the District
Inspector of Schools is also obliged to take
a decision as per the specifications of the
time schedule provided in Rule 11 itself for
the Committee as well as for the District
Inspector of Schools. This compliance has
to be adhered to keeping in view the year of
recruitment and also the eligibility of the
candidate including his qualification as on
the first day of the year of recruitment
which would be the 1st of July of the year
in question. However, any failure on their
part would not extend the right of the
Management to any stage beyond that for
adopting the mode of appointment by way
of transfer. It is this aspect which has been
insisted upon by the Full Bench in the
paragraphs referred to here-in-above and
which has not been noticed by the learned
Single Judge in the impugned judgment.
Consequently, we are of the opinion that
the learned Singe Judge has not correctly
appreciated the ratio of the Full Bench and
has therefore arrived at an incorrect
conclusion that the option is open up to the
stage
of
advertisement
for
making
appointment by way of transfer. The
impugned judgment therefore cannot be
sustained to that extent.

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

5. U.P.Act No.15 was enacted on
21.08.2023 with the object to bring in
uniformity, transparency and timeliness in
the recruitment process of teachers as there
were five various commission functioning
in the State for selection of teachers, in the
name
of;
(i)
Uttar
Pradesh
Higher
Education Service Commission for the
selection of teachers of non-government
aided colleges of the State; (ii) Uttar
Pradesh
Secondary
Education
Service
Selection Board for the selection of
teachers
of
non-government
aided
intermediate
colleges;
(iii)
Concerned
management committee for the selection of
the posts of assistant teachers in aided
junior high schools and affiliated primary
schools; (iv) District Basic Education
Officer and |Secretary, Basic Education
Council for selection of assistant teachers
in council schools; (v) Uttar Pradesh
Subordinate
Services
Selection
Commission for the selection of instructors
in the Department of Vocational Education.

6. The idea for setting up a unified
commission was due to the difference in
the level of efficiency related to selection
by
the
above
named
Commission/Institution, as the quality of
selection of teachers was affected, there
was no uniformity in the process of
selection, timely selection of teachers was
not being done, and there were several
vacant posts of teachers in various
institutions, which adversely affected the
education/training of the students/trainees
in the State. Apart from this, a lack of
transparency is also evident in the selection
process conducted by institution level
selection committee which has resulted in
litigations.

7. Section 31 is the repeal and
saving
clause,
which
is
extracted
hereasunder :

 "31. (1) The Uttar Pradesh
Higher Education Services Commission
Act, 1980, the Uttar Pradesh Secondary
Education Service Selection Board Act,
10 All. Rajiv Kumar Vs. State of U.P. & Ors.
337
1982 and the Uttar Pradesh Education
Service Selection Commission, 2019 are
hereby repealed.

 (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 the enforcement of provisions."

8. Sub-section (2) of Section 31 is
the saving clause which provides that
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.
Meaning thereby, that all the actions,
which were done pursuant to Uttar
Pradesh Secondary Education Service
Selection Board Act, 1982 (hereinafter
called as "Act of 1982") and the rules
framed thereunder, were saved by subsection (2) of Section 31.

9. Rules of 2023 was introduced
on 13.12.2023. Sub-rule (2) of Rule 1
provides for commencement of Rules dated
13.12.2023, which came into force with
effect from the date of its publication in the
gazette. Rule 1 is extracted hereasunder :

 "1(1) These rules may be called
the Uttar Pradesh Education Service
Selection Commission Rules, 2023.

 (2) They shall come into force
with effect from the date of their
publication in the Gazette."

10. Chapter V of Rules of 2023
provides for procedure of recruitment. Rule
28 is of great importance and relates to
determination of notification of vacancies.
It is somewhat pari materia to Rule 11 of
Rules of 1998. Sub-rule (1) of Rule 28
provides for determination of vacancies in
accordance with sub-section (1) of Section
10 of Act of 1923 by the Appointing
Authority or Management or Authorized
Officer and the same has to be notified
through Director (Higher Education) or the
Director (Secondary Education), or the
Director (Basic Education) or the Director
(Training and Employment) or Director
General of Atal Residential Schools, as the
case may be, to the Commission in the
manner hereafter provided.

11.

Similarly,
sub-rule
(2)
provides that vacancies for each category
of post to be filled in by direct recruitment,
including the vacancies that are likely to
arise on the last day of the year of
recruitment has to be sent by the
Appointing Authority or Management or
Authorized Officer by July 15 of the year
of recruitment to the Authorized Officer.

12. Sub-rule (3) of the Rule 28
envisages a situation that if, after vacancies
have been notified under sub-rule (2), any
vacancy in the post of teacher or instructor
occurs,
the
Appointing
Authority
or
Management or Authorized Officer shall,
within fifteen days of its occurrence, notify
the Authorized Officer in accordance with
the said sub-rule and the Authorized
Officer shall within ten days of its receipt
by him send it to the Commission.
338 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Sub-rule (4) further provides
that where for any year of recruitment, the
Appointing Authority or Management or
Authorized Officer 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 Authorized
Officer shall on the basis of the record in
his office, determine the vacancies in such
institution in accordance with sub-section
(1) of section 10 and notify them to the
Commission in the manner and by the date
referred to in the said sub-rule. The
explanation appended to it clarifies that
vacancies notified to the Commission under
the sub-rule shall be deemed to be notified
by
the
Appointing
Authority
or
Management or Authorized Officer of such
institution. Thus, explanation appended to
sub-rule (4) is a deeming clause.

14. Sub-rule (5) is of great
importance as it provides that post of notified
vacancies shall not be filled by a single
transfer. However, proviso to sub-rule (5)
provides that in special circumstances, if a
single transfer is necessary, then it will be
necessary to bring the said process to the
notice of the Commission as soon as possible,
and the vacancy as a result of single transfer
will be considered included in the posts
notified by the Director, and this vacancy will
also be covered by the same selection
process.
After
commencement
of
the
selection process, no single transfer will be
done under any circumstances.

15. Thus, it is clear from sub-rule (5)
that notified vacancy is not to be filled by
single transfer. However, in exceptional
cases, when it is brought to the notice of
Commission, the single transfer may be
considered for the post which has been
notified. It cannot be done in a routine
manner.
16. Coming to the facts of the case,
in Writ A No.12611 of 2024, the post of
Principal became vacant on retirement of
Principal on 31.03.2019. One Shri Ram
Prakash Rathore, who was the senior most
teacher, was appointed as an Officiating
Principal with effect from 01.04.2019. The
requisition for filling up the post of Principal
was made online to the Board on 30.09.2019.
Thereafter the Officiating Principal of the
institution had also notified the DIOS through
letter dated 29.05.2023. Thus, the vacancy
was notified by the Management through
online on 30.09.2019 and through Principal
on 29.05.2023. Sri Ram Prakash Rathore
attained the age of superannuation on
31.03.2024,
thereafter
Committee
of
Management had passed a resolution for
appointing one Sri Khemkaran as Officiating
Principal.
The
petitioner
made
a
representation before the District Inspector of
Schools, who accepted his claim on
26.04.2024 and appointed him as Officiating
Principal and his signatures were attested. He
assumed the charge on 27.04.2024 and since
then he is working as Officiating Principal.
By the order impugned dated 28.06.2024, 5th
respondent has been transferred to the
institution known as Late Gaya Prasad
Verma Smarak Krishak Inter College, which
is subject matter of dispute.

17. In Writ-A No.11436 of 2024
the post of Principal fell vacant on
30.06.2015 on the retirement of one
Dharam Singh. There also stood vacancy of
four Assistant Teachers alongwith that of
Principal in the institution known as
Sarvodaya Inter College, Nazirpur Sakeet,
District Etah. Pursuant to the letter of
District
Inspector
of
Schools
dated
15.7.2019, the Management notified the
vacancy online to the Board. This fact was
conveyed to the District Inspector of
Schools through letter dated 22.07.2019.
10 All. Rajiv Kumar Vs. State of U.P. & Ors.
339
One Shyam Singh being the senior-most
teacher was officiating as Principal of the
institution.
He
attained
the
age
of
superannuation
on
31.03.2022.
The
petitioner,
who
was
the
senior-most
teacher, on 01.04.2022 was given the
charge of Officiating Principal and his
signatures were attested on 16.05.2022,
since then he is working as Officiating
Principal in the institution. The Committee
of Management has given consent for
transfer of the 4th respondent to the
institution as he is the relative of the
Manager. By the order impugned, the 7th
respondent has been transferred in the
institution on 28.06.2024.

18. In both these writ petitions, the
Committee of Management had already
sent the requisition to the Board in the year
2019 when the vacancy occurred on the
post of Principal. In both the cases,
requisition was made online as well as
intimation was also sent in writing to the
District Inspector of Schools.

19. Sub-section (2) of Section 31,
which is a non obstante clause, saves all
those action taken and proceedings initiated
under Act of 1982, and it shall be deemed
to have been done or taken under the Act of
2023. The saving clause of Section 31
clearly saves all the action which were
done pursuant to the Act of 1982.

20.

Reliance
placed
by
respondent's counsel upon the decision
rendered by coordinate Bench in case of
Mayashankar vs. State of U.P. and 4
others, Writ-A No.5106 of 2023, decided
on 13.08.2024 does not help his cause. The
Court found that once the Act of 1982 was
repealed, the Rules of 1998 framed
thereunder also stood repealed.

21. It seems that provisions of
Section 31(2) was not brought to the notice
of Court, which is the saving clause. Only
Section 31(1) of Act of 2023 was placed
before
the
Court,
which
has
been
considered in para 23 of the said judgment.
Sub-section (2) of Section 31 clearly saves
anything done or any action taken under the
Act referred to in sub-section (1) shall be
deemed to have been done or taken under
this Act i.e. Act of 2023. Sub-section (2)
starts with a non obstante clause. Meaning
that it will prevail over the repealed
provision as provided under sub-section (1)
of Section 31.

22. Action taken or anything done
under the Act of 1982 and the rules framed
thereunder are thus saved by the instant
saving clause. In both the writ petitions, the
requisition was made as per sub-rule (4) of
Rule 11 of Rules of 1998 by concerned
Committee of Management online to the
Board for making appointment to the post
of Principal. Once such requisition was
made, the post could not have been filled
by transfer.

23. Shelter taken to proviso to subrule (5) of Rule 28 does not stand attracted
as the action taken by Committee of
Management is saved by Section 31(2) and
the Additional Director did not have the
power to proceed with the single transfer
taking benefit of the proviso to sub-rule (5)
of Rule 28.

24. Selection and appointment to
the post of Principal could only be made by
the Board or the Commission under the
relevant provisions of the Act and it cannot
be on the basis of the transfer relying upon
the proviso to sub-rule (5) and Rule 28 of
Rules of 2023.
340 INDIAN LAW REPORTS ALLAHABAD SERIES
25. The ratio laid down by the Full
Bench in Prashant Kumar Katiyar
(supra) as well as Hari Pal Singh (supra)
still hold good as once the vacancy is
notified to the Board, the same cannot be
filled by transfer.

26. In view of the foregoing
discussion, I am of the opinion that subsection (2) of Section 31, which is the
saving clause, protects the action of
Committee
of
Management
sending
requisition to the Board for filling up the
post of Principal complying the provisions
of sub-rule (4) of Rule 11 of Rules of 1998,
thus no transfer can be allowed to fill up
the vacancy.

27. Thus, in view of the above, the
question raised in both the writ petitions
stands answered.

28. In the result, both the writ
petitions succeed and are hereby allowed.
The transfer orders dated 28.06.2024
(Annexure 1 to Writ-A No.12611 of 2024)
and 28.06.2024 (Annexure 1 to Writ A
No.11436 of 2024) are not sustainable in
the eyes of law and the same are hereby set
aside.
----------
(2024) 10 ILRA 340
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ-C No. 15271 of 2009

Smt. Maya Devi ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Brijesh Kumar, Rahul Pandey

Estoppel-The land i.e. arazi no. 297 been
released from being surplus land-therefore
all subsequent proceedings would be non
est- the St. itself has taken an alternate
land of original tenure holder as surplus
land -the respondent authorities itself by
order dated 27th April 1979 and 5th
November 1981 has accepted that land of
petitioner
cannot
be
a
surplus
landtherefore, the respondent authorities are
estopped from raising question on validity
of sale of land at this stage- the lease
granted in pursuance to the aforesaid
declaration of surplus-no right would accrue
in favour of respondent no. 8.

W.P. allowed. (E-9)

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

In Re: Civil Misc. Impleadment
Application No. 6 of 2018

1. Impleadment application has been
filed on behalf of one Ms. Roopa claiming
to be the subsequent purchaser of the
property in question from the respondent
nos. 6 and 7.

2. Sri Brijesh Kumar, advocate
appearing for the impleader submits that the
present impleadment application has been
filed as the right of the impleader could be
materially affected by the litigation pending
before this Court.

3. Learned Standing Counsel and
learned counsel for the petitioner has no
objection to the same.

4. Accordingly, the application is
allowed.