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

- **Citation:** (2024) 9 ILRA 532
- **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-52378
- **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

532 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Officer to prefer an application
ignoring the statutory prescriptions relating
to the appeal and revision.

5. Having heard learned counsel for
the parties and having perused the material
available on record as well as perusing the
relevant provisions of law and Rules, 1991,
I am of the considered opinion that on
account of any provision of law authorizing
the Government to call for and examine the
record on its own motion or otherwise may
not
make
the
statutory
prescriptions
redundant, which have been provided
earlier to such prescription. To be more
precise, under Rule 20 of the Rules, 1991,
any Police Officer may file statutory appeal
challenging the punishment order within
the prescribed period and if such officer is
aggrieved from the order of the appellate
authority, the revision may be filed under
Rule 23 of the Rules, 1991 within specific
period. If any Police Officer does not file
statutory appeal and statutory revision
within the time so stipulated and has slept
over on the issue, then filing any
representation under Rule 25 of the Rules,
1991 saying that since he has not filed any
appeal and there is no limitation under
Rule 25, therefore, the Government may
pass any appropriate order invoking its
power under Rule 25 of the Rules, 1991
may not be permissible under the law
otherwise the earlier provisions i.e. Rule
20 and Rule 23 of the Rules, 1991 would
be redundant and any Police Officer may
likely ignore the appellate provision and
revisional provision and will approach the
State Government straight away under
Rule 25 of the Rules, 1991 saying that
since no time limit has been prescribed
under Rule 25 of the Rules, 1991 and such
representation may be preferred in the
case where the appeal has not been filed,
so the representation may be decided, in
that situation the statutory prescriptions
would be circumvented deliberately and
intentionally. No Court can permit to
circumvent the statutory prescriptions,
rather this has been the consistent view of
the Apex Court as well as this Court to
approach the statutory appellate and
revisional authority before approaching
any other authority, be it Court or State
Government.

6. Therefore, in view of the above,
since the petitioner has preferred a
representation under Rule 25 of the Rules,
1991 challenging the punishment orders
passed since 2014 till 2019 in a composite
representation, therefore, no direction can
be issued to the authority concerned i.e.
Principal Secretary, Home, to decide the
aforesaid representation as by means of
aforesaid representation, the petitioner
attempted to circumvent the statutory
prescriptions to file appeal and revision
within the time so prescribed under Rules
20 (6) & 23 (1) of the Rules, 1991.

7. Accordingly, this writ petition is
dismissed being misconceived.

8. No order as to costs.
----------
(2024) 9 ILRA 532
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ A No. 12611 of 2024
Along with
Writ A No. 11436 of 2024

Rajiv Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
9 All. Rajiv Kumar Vs. State of U.P. & Ors.
533
Counsel for the Petitioner:
Vinod Kumar Singh

Counsel for the Respondents:
C.S.C., Sankalp Narain, 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
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
534 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
9 All. Rajiv Kumar Vs. State of U.P. & Ors.
535
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
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
536 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
9 All. Rajiv Kumar Vs. State of U.P. & Ors.
537
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,
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")
538 INDIAN LAW REPORTS ALLAHABAD SERIES
and the rules framed thereunder, were
saved by sub-section (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.

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
9 All. Rajiv Kumar Vs. State of U.P. & Ors.
539
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. 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.
540 INDIAN LAW REPORTS ALLAHABAD SERIES

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 sub-rule
(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.

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 sub-section (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 WritA 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) 9 ILRA 540
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 13596 of 2024

Azizur Rahaman ...Petitioner
Versus
District Cooperative Bank Ltd. & Ors.
 ...Respondents