Ashok Bhushan, J. - (1.) -Heard Sri R. N. Singh, senior advocate assisted by Sri V. K. Singh, advocate for the appellant, Dr. R. G. Padia, senior advocate appearing for respondent No. 5 and learned standing counsel.
(2.) THIS special appeal has been filed by the appellant challenging the judgment and order dated 10th April, 2002 of learned single Judge in Writ Petition No. 40150 of 2001 by which the writ petition filed by the appellant has been dismissed. Facts giving rise to this appeal, briefly stated, are ; appellant has been selected by U. P. Secondary Education Service Selection Board, Allahabad (hereinafter referred to as the Board) for the post of Principal in Budhsen Prem Chandra Inter College, Bulandshahr, where he joined on 22nd February, 1999 and was subsequently confirmed. Gopi Ram Paliwal Inter College, Aligarh (hereinafter referred to as college) is a recognised institution where the post of Principal fell vacant on 30th June, 1989, due to retirement of Principal. The requisition of the post of Principal of the college was sent to the Board for filling the post by direct recruitment. The Board published the vacancy of principal of the college on 26th December, 1995 but selection could not take place in pursuance of the said advertisement. Subsequently again the Board published the vacancy which was published in the newspaper "Amar Ujala" on 14th August, 1998. Various persons held the post of principal on ad hoc basis upto 30th June, 2001 when the last incumbent, Sri Devendra Singh, retired. The advertisement made in the year 1998 was challenged by the then ad hoc Principal, Sri B. K. Paliwal, by filing a writ petition in this Court. Devendra Singh who lastly held the post on ad hoc basis has also filed Writ Petition No. 44128 of 1999 challenging the advertisement made in the year 1998 which petition was dismissed by this Court in February, 2001. The appellant who was working at Bulandshahr made an application for his transfer to the college in February, 2001. The committee of management of both the colleges also passed resolution showing their concurrence to the proposed transfer. The application of transfer was made in prescribed proforma in accordance with provisions of Regulations 55 to 61 of Chapter III of U. P. Intermediate Education Act, 1921. On the said application, an order was passed by Additional Director of Education dated 30th June, 2001, transferring the petitioner from Budhsen Prem Chandra Inter College, Bulandshahr to the college. The transfer order also contemplated that if it comes into light that concerned principal/regional authorities have obtained transfer by concealment of any fact, then the Directorate will be free to cancel the transfer order. Mahendra Singh who was senior most lecturer of the college filed a writ petition in this Court challenging the said transfer order dated 30th June, 2001 and also filed complaint before the education authorities. After receiving the complaint from Mahendra Singh, the Additional Director of Education called for report. The District Inspector of Schools and Deputy Director of Education submitted their reports to the Additional Director of Education. The District Inspector of Schools in his report dated 19.9.2001 stated that requisition for vacant post of Principal was sent in the year 1989 to the Secretary of the Board and the post was advertised by the Board in the year 1995-96. Again the post was advertised by the Board on 14th August, 1998. It was stated that from 1989 to 30th June, 2001, various senior teachers functioned as Principal in pursuance of the interim order granted by the High Court. The appellant also wrote letter to the District Inspector of Schools praying that no action be taken in the matter with regard to transfer of the appellant. The District Inspector of Schools also wrote a letter to the manager of the College asking report with regard to complaint made by Mahendra Singh against the transfer dated 30th June, 2001. The manager submitted a reply to the letter of the District Inspector of Schools. The Additional Director of Education after receiving the various reports passed the order dated 24th November, 2001, cancelling the order dated 30th June, 2001, transferring the petitioner in the college. It was stated in the letter that after enquiry, it has come to notice that the said transfer was obtained by concealment of facts, the requisition for the post of Principal of the college was sent to the Board but in the transfer application it was mentioned that no requisition has been sent to the Board. In view of the above, the transfer order was cancelled. The appellant filed writ petition challenging the aforesaid order dated 24th November, 2001. The writ petition has been dismissed by learned single Judge vide its judgment dated 10th April, 2002 against which present special appeal has been filed.
(3.) SRI R. N. Singh, senior advocate, appearing for the appellant in support of this appeal has raised following submissions : (i) The fact that requisition for the post of Principal was sent to the Board and the post was advertised by the Board was not an impediment in transfer of the appellant and the aforesaid fact was not relevant fact for cancellation of transfer of the appellant. SRI R. N. Singh has placed reliance on three judgments of learned single Judges of this Court for the aforesaid proposition, namely, judgment dated 18th April, 1996 in W. P. No. 12037 of 1996, Smt. Pushpa Sharma v. Director of Education and others ; judgment dated 22nd April, 1996 in W.P. No. 14248 of 1996, Darshan Singh v. State of U. P. and others and Narendra Kumar v. State of U. P. and others, 2002 (1) ESC 214. (ii) In the transfer application, which was filed seeking transfer, it was not the appellant who concealed any fact and even if any fact was concealed, it was by the management for which appellant cannot be held guilty. Further there was no concealment in Column 19 of the transfer application. (iii) Even though appellant was not entitled for oral hearing before the authorities, he was entitled for notice and opportunity before cancelling his transfer. The counsel contended thaj appellant's submission was not to the effect that he was entitled for oral hearing. Dr. R. G. Padia, senior advocate appearing for respondent No. 5 contended that transfer order dated 30th June, 2001, having been obtained by concealment of facts, the same was rightly cancelled by Additional Director of Education. Dr. Padia submitted that since the order of cancellation was passed on the information submitted by appellant himself, hence there was no occasion to give any opportunity of hearing to the appellant before passing the order of cancellation. It was contended that there was clear concealment of fact in the transfer application which was duty signed by the appellant himself and the appellant cannot be heard in saying that he never concealed a fact. In the facts of the present case, no opportunity of hearing was required to be given to the appellant.;