B.L. Yadav, J. - (1.) BY the present petition under Article 226 of the Constitution of India the prayer is that the order, dated 5 -10 -1989/11 -10 -1989 (Annexure -6 to the petition), passed by the District Inspector of Schools, Basti, holding Respondent No. 2 to be senior to Petitioner No. 2, may be quashed. On behalf of Petitioner No. 1 the writ petition has become infructuous as he has already retired. The factual matrix of the case is that Respondent No. 2 was transferred to Kisan Inter College, Uska Bazar, Basti on 1 -11 -1982. The Manager of the institution prepared a seniority list (Annexure -2 to the petition) showing Sri Krishna Nanad Srivastava at serial No. I, Ram Deo Pandey at Serial No. 2 and Sita Ram Lal at Serial No. 3, whereas Sri Dhruv Narain Shukla, the present Petitioner No. 2 was shown at Serial No. 4 and Sri Dhruv Narain Dubey at Serial No. 5. In this way Respondent No. 2 was shown to be senior to Petitioner No. 2. The matter was taken to the District Inspector of Schools and by the impugned order he held that Respondent No. 2 would continue to be senior to Petitioner No. 2.
(2.) LEARNED counsel for the petitioner urged that after the enforcement of U.P. Secondary Education Service Commission and Selection Board Act, 1982, (for short the Act), the appointments of teacher would be made only under the Act. In this way it was urged that in view of Section 16, of the Act, under Chapter IV the appointment to the post of teacher can be made only on the recommendation of the Commission or the Board, meaning thereby that the same cannot be made on the basis of transfers. Reliance was placed on Om Prakash Rana and others v. State of U.P. and others, 1986 U.P.L.B.E.C. 444, where their Lordships of the Supreme Court considered the scope of Sections 16 and 21(g)(2 -c) of the U.P. Intermediate Education Act, 1921 and the scope of regulations under Chapter III. It was held that after the commencement of U.P. Secondary Education Service Commission and Selection Boards Act, it is no longer possible to invoke Section 16G(2 -C) of the Intermediate Education Act or its regulation and transfer principal from one institution to another, Raghunandan Prasad Bhatnagar v. Administrator Committee of Management, Gandhi Vidyalaya Inter College, Khera, Meerut : 1985 Labour and Industrial Cases 1648 (FB) : : 1985 (11) A.L.R. 103 (Sum.), was approved. Sri Radhey Shyam, learned counsel appearing for the respondents urged that even though the Act has come into force on 14 -7 -1981, but the Selection Board has not been constituted till 1 -11 -1982. Consequently Respondent No. 2 being transferred in the institution and having taken charge in pursuance of the order of the District Inspector of Schools, dated 22 -4 -1982, his transfer or appointment was not affected by the enforcement of the Act. It was further urged that in any case the appointment of Respondent No. 2 cannot be challenged in this court as the writ petition is directed only against the order of seniority of Respondent No. 2. Reliance was placed on V.N. Sharma v. District Inspector of Schools, 1986 U.P.L.B.E.C. 44.
(3.) HAVING heard the learned counsel for the parties and considering the scope of Section 16 of the Act and Sections 18 and 32 of the Act, it is abundantly clear that after the enforcement of the Act the appointment of a teacher or lecturer etc. as indicated in the schedule can be made only under the provisions of the Act. The provisions of Section 16 are quite explicit which provides that notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or its regulations made thereunder, but subject to provisions of Section 18, etc., every appointment of a teacher specified in the Schedule, shall on or after July 10, 1981, be made by the management only on the recommendation of the Commission. It is the recommendation of the Commission which is the decisive factor in the appointment of a teacher and the same cannot be made by transfer Section 32 of the Act provides that the Intermediate Education Act, 1921 shall apply only to the extent the provisions are not inconsistent with the provisions of this Act. A transfer is permissible under the intermediate Education Act but not under the Act.;