# Ram Kumar Verma v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 461
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-17
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-verma-v-state-of-u-p-and-others-42201
- **Pages:** 9

## Headnote

C.S.C.
Sri H.S. Jain
Sri S.P. Shukla

U.P.
Secondary
Education
Service
Selection
Board
1982-Section-16appointment of Head Master by Transferchallenged-petitioner being Senior most
L.T. Grade Teacher working on Ad-Hoc
basis-requisition send to Board-and once
Selection Process started-appointment
by Transfer illegal-held-misconceivedwhen transfer of R-6 approved after
completing
all
requirement-selection
process
automatically
canceledcancellation order name of petitioner
institution placed at serial no. 19petition dismissed.

Held: Para 28

This Court has come to the conclusion
that
since
the
advertisement
dated
29.6.2011 was cancelled by subsequent
notification dated 26.8.2011 issued by
the Board as such it cannot be said that
the process of selection was started or
was in progress when the opposite party
no. 6 was transferred on the post in
question,
therefore,
the
judgments
aforesaid in the case of Asha Singh
(supra) and Smt. Amita Sinha (supra)
will be of no assistance to the petitioner
as in the said case, the vacancies were
advertised and applications were invited
but
the
same
had
neither
been
withdrawn nor cancelled by the Board
but in the present case, the vacancy for
the post of Headmaster which was
earlier invited was withdrawn and the
advertisement made by the Board was
cancelled as such there was no legal
bottle neck in finalizing the transfer
proposal of the opposite party no. 6.
Moreover, the transfer of opposite party
no. 6 was accorded final approval by the
Additional Director of Education, who is
said to be the competent authority. The
opposite party no. 6 thereafter has
submitted his joining on the post in
question on 27.12.2011.
Case law discussed:
2007 (3) UPLBEC 2497; 2009 (1) ALJ 611

## Text

1 All] Ram Kumar Verma V. State of U.P. and others
461
No. 243 of 2010 ( Crime Case No. 1103 of
2009) is dismissed.

33. All the appellants are acquitted
from the charges of which they have been
found guilty in S.T. No. 242 of 2010. The
appellant no. 2 and 3 Sandeep and
Dharmvir are on bail, they need not to
surrender. The appellant no. 1 Babloo, who
is in jail shall be released after completing
his sentence in S.T. No. 243 of 2009, (
Case Crime No. 1103 of 2009), unless
wanted in some other case. All the
appellants shall stand discharged from the
liabilities of their respective bail bonds.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2012

BEFORE
THE HON'BLE RITU RAJ AWASTHI,J.

Writ Petition No. - 9272 (S/S) of 2011

Ram Kumar Verma

 ...Petitioner
Versus
State of U.P. through Secy. Intermediate
Edu. Lko. and others
 ...Respondents

Counsel for the Petitioner:
Sri Som Kartik

Counsel for the Respondent:
C.S.C.
Sri H.S. Jain
Sri S.P. Shukla

U.P.
Secondary
Education
Service
Selection
Board
1982-Section-16appointment of Head Master by Transferchallenged-petitioner being Senior most
L.T. Grade Teacher working on Ad-Hoc
basis-requisition send to Board-and once
Selection Process started-appointment
by Transfer illegal-held-misconceivedwhen transfer of R-6 approved after
completing
all
requirement-selection
process
automatically
canceledcancellation order name of petitioner
institution placed at serial no. 19petition dismissed.

Held: Para 28

This Court has come to the conclusion
that
since
the
advertisement
dated
29.6.2011 was cancelled by subsequent
notification dated 26.8.2011 issued by
the Board as such it cannot be said that
the process of selection was started or
was in progress when the opposite party
no. 6 was transferred on the post in
question,
therefore,
the
judgments
aforesaid in the case of Asha Singh
(supra) and Smt. Amita Sinha (supra)
will be of no assistance to the petitioner
as in the said case, the vacancies were
advertised and applications were invited
but
the
same
had
neither
been
withdrawn nor cancelled by the Board
but in the present case, the vacancy for
the post of Headmaster which was
earlier invited was withdrawn and the
advertisement made by the Board was
cancelled as such there was no legal
bottle neck in finalizing the transfer
proposal of the opposite party no. 6.
Moreover, the transfer of opposite party
no. 6 was accorded final approval by the
Additional Director of Education, who is
said to be the competent authority. The
opposite party no. 6 thereafter has
submitted his joining on the post in
question on 27.12.2011.
Case law discussed:
2007 (3) UPLBEC 2497; 2009 (1) ALJ 611

(Delivered by Hon'ble Ritu Raj Awasthi,J. )

1. Heard Mr. Som Kartik, learned
counsel for petitioner, learned Standing
Counsel for opposite party nos. 1 to 3,
Mr. H.S Jain, learned counsel for opposite
party no. 5 as well as Mr. S.P. Shukla,
learned counsel for opposite party nos. 4
& 6 and perused the record.
462 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

2. The writ petition has been filed
with the following prayers:

"(i) To issue a writ, order or
direction in the nature of certiorari
quashing the advertisement dated 29-062011 issued by the Board so far as it
relates to filling up the post of Head
Master of the School, by way of transfer,
after summoning the record.

(ii) To issue a writ, order or
direction in the nature of mandamus
commanding the opposite party No. 1 to 5
to not to fill the post of Head Master of
the school by way of transfer.

(iii) To issue such order or direction
deemed just and proper in the facts and
circumstances of the case.

(iv) To award the cost of writ
petition."

3. However, in para 1 of the writ
petition it is mentioned that the writ
petition is directed against the notification
dated 26.8.2011 whereby the opposite
party no. 5 has cancelled the earlier
advertisement to fill up the post of
Principal of the College by direct
recruitment
through
U.P.
Secondary
Education Services and Selection Board
(hereinafter referred to as the 'Board') and
the reason given is that the said post shall
be filled up by transfer. It is further
mentioned that the writ petition is also
directed against the attempt of opposite
party nos. 1 to 5 to appoint opposite party
no. 6 on the post of Head Master in the
institution by transfer.

4. The controversy involved in the
writ petition basically relates as to
whether the post of Head Master in the
Railway
Higher
Secondary
School,
Charbagh, Lucknow (hereinafter referred
to as the 'School') is to be filled up
through the Board by direct recruitment or
it can be filled up by way of transfer of
opposite party no. 6.

5. Shorn of unnecessary details, the
brief facts are that the school is a
recognized school under Intermediate
Education Act, 1921 (hereinafter referred
to as the 'Act of 1921'). It is included in
grant in aid scheme of the Uttar Pradesh
Government and the salary of the teachers
and other employees of the school is
governed under the provisions of High
School
and
Intermediate
Colleges
(Payment of Salary to Teachers and other
Employees)
Act,
1971
(hereinafter
referred to as the 'Act of 1971'). The post
of Head Master of the School fell vacant
on substantive basis on 27.9.1990 owing
to death of Sri Vijay Narain Pathak who
was permanent Head Master. After his
death, Sri Desh Raj Singh Rathore, LT
Grade Teacher was promoted as Head
Master on ad hoc basis, he too died in
June, 1998. Thereafter, Sri Mata Prasad,
the next senior most LT Grade Teacher
was promoted to the post of Head Master
on ad hoc basis from July, 1998. He
retired on 30th June, 2002. Thereafter, the
next senior most LT Grade Teacher, Smt.
Pushp Lata Misra was promoted as Head
Master on ad hoc basis. She too retired on
30.6.2006.

6. It was thereafter that the petitioner
was promoted as Head Master on ad hoc
basis w.e.f. 01.09.2006. The appointment
of petitioner was approved by the District
Inspector of Schools, Lucknow vide letter
dated 30.12.2006.
1 All] Ram Kumar Verma V. State of U.P. and others
463

7. A requisition to fill up the post in
question was sent to the Board in the year
2000. One Sri Yogesh Chandra Tripathi
was selected for the said post and was
nominated for appointment, however, due
to interim order granted by the High
Court at Allahabad, the recommendation
of the Board was kept on hold, until the
matter was finally decided by the
Supreme Court in the year 2009 in the
case of Balbir Kaur, wherein the aforesaid
selection was upheld. Thereupon the
Board vide its letter dated 01.07.2009 had
sent the name of Sri Yogesh Chandra
Tripathi for appointment on substantive
basis on the post in question. The District
Inspector of Schools, Lucknow also
issued the letter dated 10.7.2009 in this
regard. However, Sri Yogesh Chandra
Tripathi did not turn up to join in the
school, even after a long time. Hence, the
committee of Management-opposite party
no. 4 vide letter dated 16.12.2009
informed
the
District
Inspector
of
Schools-opposite party no. 3 that the
person recommended by the Board did
not turn up to join on the post of Head
Master.

8. In the meantime, Sri Jai Jai Ram
Upadhyay-opposite party no. 6 made an
application seeking his transfer to the
School. The opposite party no. 4 vide
letter dated 29.5.2011 gave its consent for
his transfer to the school. However, the
Board on the basis of the fact that the
selected candidate has not joined in the
school,
issued
advertisement
dated
29.6.2011 to fill up the post in question by
selection.

9. In the meantime, application for
transfer of opposite party no. 6 was
processed and the institution where he
was working gave its no objection on
27.6.2011 and recommended for his
transfer to the school. The District
Inspector
of
Schools,
Hardoi
also
recommended for his transfer by letter
dated 13.7.2011. The District Inspector of
Schools, Lucknow as well recommended
for transfer of opposite party no. 6 by his
recommendation dated 05.08.2011. The
Joint Director of Education, Lucknow
also send the recommendation vide his
letter dated 09.09.2011 and ultimately the
matter was considered by the Additional
Director of Education who vide letter
dated 16.12.2011 recorded final approval
of transfer of opposite party no. 6 to the
school. Thereafter the opposite party no. 6
was relieved from Santosh Kumar Inter
College, Hardoi on 26.12.2011 and said to
have joined in the school on 27.12.2011
in the forenoon.

10.

The
advertisement
dated
29.6.2011 inviting applications for the
post in question in the school by direct
recruitment
through
selection
was
cancelled by notification published by the
Board
on
26.8.2011,
copy
of
advertisement
dated
29.6.2011
and
notification dated 26.8.2011 are annexed
as Annexure Nos. 4 & 5, respectively.

11. Learned counsel for petitioner
submitted that the petitioner being the
senior most Assistant Teacher LT Grade
was appointed as Head Master on ad hoc
basis in the school under Section 18 of the
U.P.
Secondary
Education
Services
Selection Board Act, 1982 (hereinafter
referred to as the 'Act of 1982'). His
appointment has been approved by the
District Inspector of Schools, Lucknow
and he is continuously working and
discharging all the duties of Head Master
to the best of satisfaction of the
concerning authorities.
464 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

12. Contention of learned counsel
for petitioner is that the name of petitioner
being senior most Assistant Teacher LT
Grade of the school was forwarded to the
Board in pursuance of advertisement
dated 29.6.2011 and he has a right to be
considered in the selection, which was to
be held by the opposite party no. 5. His
further contention is that once the
advertisement dated 29.6.2011 was issued
by the Board, the process of selection was
started and as such in view of the law laid
down by this Court in the case of Asha
Singh Vs. State of U.P. and others; 2007
(3) UPLBEC 2497, which has been
affirmed by Division Bench in the case of
Smt. Amita Sinha Vs. State of U.P. and
others; 2009 (1) ALJ 611, the post in
question could not be filled by transfer.

13. Mr. H.S. Jain, learned counsel
for opposite party no. 5 on the other hand
submitted that the advertisement issued to
fill up the post in question through
selection by the Board was subsequently
cancelled by notice dated 26.8.2011 and
as such it cannot be said that once the
process for selection was in progress,
when the post in question has been filled
up by way of transfer of opposite party
no. 6.

14. It is further submitted that in fact
by notice dated 28.6.2011, a list of
approximately
100
institutions
was
published which includes the institutions
including Railway Higher Secondary
School, Charbagh, Lucknow where earlier
advertisements to fill up posts through
selection by the Board was issued but
they were cancelled for various reasons,
which
is
evident
from
perusal
of
Annexure No. 5 to the writ petition.

15. Mr. S.P. Shukla, learned counsel
for opposite party nos. 4 & 6 submitted
that the opposite party no. 6 is having
qualification of P.hd. and he was selected
as Principal for a Hardoi College by the
Board and thus the opposite party no. 6
being a selectee of the Board itself, there
was no impediment, much less wrong in
allowing him to be transferred to the
institution of the opposite party no. 4,
particularly, when the Committees of
Management of both the institutions
agreed for such transfer and the District
Inspector of Schools, Hardoi as well as
District Inspector of Schools, Lucknow
also gave their consent in writing and the
Joint Director of Education, Lucknow
Region also agreed. Not only this the
Additional Director of Education within
whose powers lies the approval of transfer
has also ruled in favour of the opposite
party no. 6 and has allowed the transfer.

16.

I
have
considered
the
submissions made by the parties' counsel.

17. Section 16 of the Act of 1982
refers
to
appointment
of
teachers
including Principals/Headmasters.

18. For ready reference, the
amended Section 16 is reproduced below:

"16. Appointment to be made only
on the recommendations of the Board-
(1) Notwithstanding anything to the
contrary contained in the Intermediate
Education Act, 1921 or the Regulations
made thereunder, but subject to the
provisions of Sections 12, 18, 21-B, 21-C,
21-D, 21-E, 21-F, 33, 33-A, 33-B, 33-C,
33-D, 33-E and 33-F, every appointment
of a teacher shall, on or after the date of
commencement of the U.P. Secondary
Education
Services
Selection
Board
1 All] Ram Kumar Verma V. State of U.P. and others
465
(Amendment) Act, 2001 be made by the
Management only on the recommendation
of the Board:

Provided
that
in
respect
of
retrenched employees, the provisions of
Section
16-EE
of
the
Intermediate
Education
Act,
1921
shall
mutatis
mutandis apply.

Provide further that the appointment
of a teacher by transfer from one
Institution to another, may be made in
accordance with the regulations made
under Clause (c) of Sub-section (2) of
Section
16-G
of
the
Intermediate
Education Act, 1921.

Provided also that the dependent of a
teacher
or
other
employee
of
an
Institution dying in harness who possess
the qualifications prescribed under the
Intermediate Education Act, 1921, may be
appointed
as
teacher
in
Trained
Graduate's Grade in accordance with the
regulations made under Sub-section (4) of
Section 9 of the said Act.

(2)
Any
appointment
made
in
contravention of the provisions of Subsection (1) shall be void."

19. Thus, under the amended
Section 16, following six modes of
appointment are contemplated:

(a) by way of direct recruitment
through process of selection held by U.P.
Secondary Education Services Selection
Board, Allahabad,

(b) by way of promotion within 50%
quota, in accordance with the Statutory
Rules applicable,

(c) by way of transfer in accordance
with the provisions of Regulations 55 to
62 of Chapter-III of Regulations framed
under the U.P. Intermediate Education
Act, 1921,

(d) by appointment of reserved pool
Teacher under Sections 21-B to 21-D of
the Act of 1982,

(e) by way of regularization of
teachers appointed on ad-hoc basis under
Sections 33-A to 33-D of the U.P.
Secondary Education Services Selection
Board Act, 1982,

(f)
by
way
of
compassionate
appointment.

20. In the case in hand, the petitioner
was promoted as Headmaster on ad hoc
basis w.e.f. 01.09.2006 after the post in
question got vacant due to retirement of
one Smt. Pushp Lata Mishra. The
requisition to fill up the post in question
was sent to the Board in the year 2000
and one Sri Yogesh Chandra Tripathi was
selected for the said post, however, Sri
Yogesh Chandra Tripathi did not turn up
to join the post in question.

21. It appears that, in the meantime,
the opposite party no. 6 being a
substantively
appointed
Principal
in
Santosh Kumar Inter College, Hardoi
made an application seeking his transfer
to the School where the petitioner was
working. The opposite party no. 4 gave
his consent by letter dated 29.5.2011 for
transfer of opposite party no. 6 to the
School. The institution where the opposite
party no. 6 was working also gave its no
objection on 27.6.2011 and recommended
for his transfer. The District Inspector of
Schools, Hardoi by letter dated 13.7.2011
466 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
also recommended for his transfer and the
opposite party no. 3-District Inspector of
Schools,
Lucknow
by
letter
dated
05.08.2011 agreed for his transfer. The
Joint Director of Education, Lucknow in
this regard sent its recommendation by
letter dated 09.09.2011 and ultimately the
matter was considered by the Additional
Director of Education, who by letter dated
16.12.2011 recorded final approval for
transfer of opposite party no. 6 to the
School. It was thereafter that the opposite
party no. 6 was relieved from Santosh
Kumar
Inter
College,
Hardoi
and
submitted his joining in the School where
the petitioner is working on 27.12.2011.

22. It is to be noted that in the
meantime the Board treating the post in
question
to
be
vacant
issued
advertisement dated 29.6.2011 inviting
applications for selection on the post in
question, however, the said advertisement
was cancelled by notice published by the
Board on 26.8.2011, perusal of which
clearly indicates that out of total posts
advertised earlier, 23 posts have been
cancelled, 7 posts have been amended and
a decision has been taken to include 94
new posts. The last date of applying was
thereafter extended from 25.8.2011 to
26.9.2011. In the list of institutions where
the selection has been cancelled, name of
the School (Railway Higher Secondary
School, Charbagh, Lucknow) is at SL.
No. 19 and the reason for cancellation is
given as 'Transfer'.

23.

It
is
evident
that
the
advertisement
dated
29.6.2011
was
modified by notification dated 26.8.2011
according to which the advertisement
issued regarding filling of the post in
question
through
selection
stood
cancelled, hence it cannot be said that the
process for selection to fill up the post in
question was started and it was in
progress when the transfer of opposite
party no. 6 was effected. It is very much
clear
that
the
advertisement
dated
29.6.2011 so far as the post in question is
concerned was cancelled by notification
dated 26.8.2011.

24. It is not the case of the petitioner
that the Board has no power to cancel the
earlier advertisement dated 29.6.2011 or
that the post in question cannot be filled
up by way of transfer, even after
cancellation of the advertisement. The
pleadings are only to the effect that the
action of opposite parties to fill up the
post in question by way of transfer is
arbitrary and illegal as the requisition for
filling of the same was forwarded by the
Committee of Management to the Board
and in pursuance of the same, the post
was advertised by the Board.

25. Now, in the light of aforesaid
facts, it would be appropriate to examine
the laws laid down by this Court in the
case of Asha Singh (supra) and Smt.
Amita Sinha (supra).

26. The question which cropped up
for consideration in the case of Asha
Singh (supra) was as to whether once the
vacancy has been requisitioned for direct
recruitment
by
Committee
of
Management for Intermediate College and
in fact the vacancy has been advertised, is
it still open to the Management of the
same institution to fill up the vacancy by
way of transfer, so as to negate the
selection held by the Board against the
same requisitioned vacancy. The Court
came to the conclusion that once the
vacancy has been advertised on a
requisition made by the Committee of
1 All] Ram Kumar Verma V. State of U.P. and others
467
Management by the U.P. Secondary
Education
Services
Selection
Board,
Alllahabad,
the
Committee
of
Management looses its discretion to fill
up the vacancy by way of transfer
inasmuch as the process of direct
recruitment has been started. Once the
advertisement is made by the U.P.
Secondary Education Services Selection
Board, Allahabad, the Committee of
Management
cannot
resort
to
the
mechanics of transfer for the purpose of
filling up of the same vacancy, which had
already been advertised.

Relevant paras 19, 20 and 21 are
reproduced as under:

"19. This Court may record that once
the vacancy is advertised, the Committee
of Management must loose its discretion
to fill the same vacancy by transfer
inasmuch as the process of direct
recruitment has been started. Once the
advertisement is made by the U.P.
Secondary Education Services Selection
Board, Allahabad the Committee of
management
cannot
resort
to
the
mechanics of transfer for the purposes of
filling up of the same vacancy, which had
already been advertised.

20. It is necessary to restrict the
discretion of the Management upto that
stage, so as to safeguard the entire
proceedings of selection, which had been
initiated by the U.P. Secondary Education
Services Selection Board, Allahabad. It is
with reference to the number of vacancies
which have been advertised that the
number of candidates to be invited for
interview and finally empanelled in their
respective
categories,
has
to
be
determined.
Further
the
selected
candidates have to exercise their options
qua their empanelment under Rule 12 (4)
of the U.P. Secondary Education Services
Selection Board Rules, 1998 qua the
vacancies which were subject matter of
advertisement.
Any
attempt
of
the
Management
to
fill
the
advertised
vacancy by way of transfer, would result
in creating a situation wherein the
selected candidates may be deprived of
their appointment despite having not been
selected in order to merit, inasmuch as
after they are empanelled for a particular
institution, they will not be permitted to
join because of vacancy had been filled by
transfer
in
between.
The
entire
proceedings
initiated
by
the
U.P.
Secondary Education Services Selection
Board, Allahabad will be brought to
nought because such change of heart of
the Management of the institution. The
entire process of selection will have to be
re-done by the U.P. Secondary Education
Services Selection Board, Allahabad so
that the selected candidate may exercise
his option only in respect of available
vacancy. This would neither be practical
nor reasonable.

21. This Court, therefore, holds that
once the vacancy has been advertised on
a requisition made by the Committee of
Management by the U.P. Secondary
Education
Services
Selection
Board,
Allahabad, the Committee of Management
looses its discretion to resort to mode of
appointment by way of transfer and then
it is only by direct recruitment on the
recommendation of the U.P. Secondary
Education
Services
Selection
Board,
Allahabad that any appointment against
the vacancy advertised can be made."

27. In the case of Smt. Amita Sinha
(supra), the judgment of Asha Singh
(supra) was challenged in special appeal
468 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
before the Division Bench, wherein the
Division Bench while upholding the
judgment of Asha Singh (supra) held as
under:

"15. It was submitted by the
appellant's counsel that under the 1998
Rules a right has been conferred upon
two senior-most teachers of the college
for being considered for appointment on
the post of Principal and filling up the
vacancy of the head of the institution by
transfer necessarily defeats such right to
consideration.
In
support
of
his
contention the learned counsel for the
appellant relied upon Prem Singh Manav
Vs. District Inspector of Schools, Meerut
and others, 1991(18) A.L.R. 279, Dinesh
Bahadur Singh Vs. State of U.P. and
others, 2004(4) AWC 2945 and Darshan
Singh Vs. State of U.P. and others
1996(28) ALR 495. In Manav's case the
question of filling up a vacancy from two
competing modes of appointment, namely
by transfer or by selection was not
involved. The transferred candidate had
joined the college several years before the
dispute relating to appointment as Acting
Principal arose and the question involved
was about the seniority of the petitioner
and the teacher transferred to the
institution several years back. In Dinesh
Bahadur Singh's case the petitioner who
was the senior-most lecturer in the
College was aggrieved by the notification
of the vacancy on the post of Principal
and contended that the claim of the
senior-most Lecturer to be appointed as
Principal was akin to the right of
promotion. The Court negatived the
contention that the right of the seniormost teacher to be considered for
selection could be treated as a right to
promotion. It was held that the post of
Principal could be filled up by promotion.
In para 3 of the Reports it has been
observed that the post had not been
advertised by the Board. In Darshan
Singh's case the facts have not been set
out in the judgment. The Court held that if
the post has been advertised but could not
be filled up for a long time, appointment
by transfer could not be excluded on the
ground of the senior-most teacher losing
his right of consideration for selection.
The question of harmonisation of the
provisions to avoid conflict in the
operation
of
Rules
relating
to
appointment by transfer or by selection
through Board was not considered in that
case. The decisions cited do not hold
anything, which may detract us from the
view taken by us. We have already held
that upto the stage of the computation of
vacancies appointment by transfer can be
made. In none of the cases cited was the
transferred
teacher
posted
to
the
institution after the advertisement of the
vacancy by the Commission and his right
of being appointed in preference to a
selected candidate may have been upheld.

16. In the result, we find no merit in
this appeal. It is accordingly, dismissed. "

28. This Court has come to the
conclusion that since the advertisement
dated
29.6.2011
was
cancelled
by
subsequent notification dated 26.8.2011
issued by the Board as such it cannot be
said that the process of selection was
started or was in progress when the
opposite party no. 6 was transferred on
the post in question, therefore, the
judgments aforesaid in the case of Asha
Singh (supra) and Smt. Amita Sinha
(supra) will be of no assistance to the
petitioner as in the said case, the
vacancies
were
advertised
and
applications were invited but the same
1 All] Smt. Dhanauti & others V. Addl. Commsssioner
469
had neither been withdrawn nor cancelled
by the Board but in the present case, the
vacancy for the post of Headmaster which
was earlier invited was withdrawn and the
advertisement made by the Board was
cancelled as such there was no legal bottle
neck in finalizing the transfer proposal of
the opposite party no. 6. Moreover, the
transfer of opposite party no. 6 was
accorded final approval by the Additional
Director of Education, who is said to be
the competent authority. The opposite
party no. 6 thereafter has submitted his
joining on the post in question on
27.12.2011.

29. Under the aforesaid facts and
circumstances, I am of the considered
opinion that the writ petition being devoid
of merit is liable to be dismissed, it is
accordingly dismissed.

30. Interim order, if any, stands
discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 9349 of 1998

Smt. Dhanauti & others
 ...Petitioner
Versus
Addl. Commsssioner
 ...Respondent

Counsel for the Petitioner:
Sri Triveni Shankar

Counsel for the Respondents:
Sri Ajeet Srivastava
Sri V.K. Singh
Sri Sudhakar Pandey
S.C.

U.P.Z.A. & L.R. Act 1950-Section-198 (5)-
Cancellation of lease-on basis of report
submitted by Tehsildar-without issuing
notice or opportunity of hearing-held
order nullity.

Held: Para 12 and 13

In
these
circumstances,
the
only
conclusion that can be drawn is that the
cancellation has been carried out in
violation of the provisions of sub-section
(5) of Section 198 of the Act.

Thus, in my opinion, the order of the
Collector dated 29.08.1996 being in
violation of principles of natural justice
and
in
violation
of
the
aforesaid
statutory
provisions
is
a
nullity.
Accordingly, the order dated 29.08.1996
and the affirmance thereof by the
Commissioner dated 26.02.1998 in so far
as it relates to the petitioners' allotment
and its cancellation is hereby set aside
with
a
direction
to
the
Collectorrespondent no.2 to afford an opportunity
of hearing to the petitioners and then
pass an appropriate order in accordance
with law.

(Delivered by Hon'ble A. P. Sahi,J. )

1. Heard Sri Triveni Shanker,
learned counsel for the petitioners, Sri
Ajeet Srivastava, learned counsel for the
respondent nos.3 & 4 and learned
Standing Counsel for the respondent
nos.1, 2 & 5.

2. Notices were issued to other
respondents. Some of them have already
filed writ petition no.17310 of 1998
(Loknath and others Vs. Board of
Revenue and others). The petitioners
herein claim that they were allotted land
by the Gaon Sabha in the meeting held on
10.07.1994. The same came to be
approved by the Sub-Divisional Officer,
Saidpur on 09.12.1994. The dispute arose