V.N. Khare, J. - (1.) THIS is an application for review of judgment of this Court rendered in writ petition no. 9102 of 1981, Bishambar Prasad Shukla v. District Inspector of Schools and others, decided on 22nd November, 1985. This fresh writ petition was treated as review petition and was earlier rejected by this Court. However, the matter has again come up before this Bench on the direction of the Supreme Court. Before we take up the issue involved in this petition, it is necessary to set out the facts which led the applicant to file this application.
(2.) SRI Suresh Prasad Tripathi, Respondent No. 4 to this application was Principal of Munder Prasad Intermediate College, Bargadwa, district Gorakhpur (hereinafter referred to as Bargadwa College). Bargadwa College is a recognised private Government aided institution. On 21st June 1981 the committee of management of Bargadwa College resolved to transfer Suresh Prasad Tripathi, Respondent No. 4 from Bargadwa College to Nautanwa Intermediate College, Nautanwa, District Gorakhpur (hereinafter referred to as Nautanwa College). By order dated 30th 1981, the District Inspector of Schools, Gorakhpur accorded approval to the transfer of Suresh Prasad Tripathi, Respondent No. 4 for being appointed as Principal in Nautanwa college. In pursuance thereof, Suresh Prasad Tripathi was issued a letter of appointment by the committee of management Nautanwa college and he joined the college as Principal on 1st July, 1981. After Suresh Prasad Tripathi joined as Principal in Nautanwa college It is alleged that the Petitioner Ram Lai Misra, who claims to be seniormost teacher of the College, was appointed as ad -hoc Principal of Bargadwa College against the vacancy on the post of Principal caused by transfer of Suresh Prasad Tripathi. The transfer of Suresh Prasad Tripathi to Nautanwa college was challenged in this Court by Sarve Sri Bishambhar Prasad Shukla, Bishambhar Dayal Vaish and Sri Ram Yadav by means of a writ petition under Article 226 of the Constitution. The said writ petition was numbered as writ petition no. 9102 of 1981. Before Respondent No. 4 was transferred and appointed as Principal at Nautanwa college, the State Government in anticipation of Ordinance no. 8 of 1981 issued order dated 7 -4 -1981 banning and staying all fresh selection and appointments as Principals, Head Master and teachers including recruitment by promotion. The order contained in Radiogram message reads as under : From Secretary to Government of U, P. Education Department G.O. No. 1701/15 -7 -FI -l (27) -81, dated 1 -4 -1981 stop all fresh selections and appointments of Principals, Headmasters and teachers including recruitment by promotion in all non -government aided secondary schools except minority institutions pending further orders. District Inspectors to ensure non drawal of pay of teachers appointed after this date. Detailed instructions follows. This order was passed by the State Government in order to check large scale malpractices going on in private Government aided institutions. The institutions were indulging in making appointments of teachers on considerations other than those of merit. The validity of the aforesaid radiogram was challenged before a Division Bench of this Court in the case of Ram Ji Dwivedi v. State of U.P., 1982 UP LB A EC 137, and it was held that the said radiogram had been issued under Article 162 of the constitution and no appointment could be made after the issue of the aforesaid radiogram. That case went up in appeal to the Supreme Court which also up -held the validity of the radiogram issued by the State Government (see Dr. Ramji Dwivedi v. State of U.P., 1983 UP LB & EC 426. On 10th July, 1981 the State Government promulgated an Ordinance known as the Uttar Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 being U.P. Ordinance No. 8 of 1981. This Ordinance was subsequently replaced by the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 being U.P. Act no. 5 of 1982 which came into force with effect from 14th July, 1981. Section 16 of the said Act provides that every appointment of a teacher including Principal shall be made by the management only on the recommendation of the commission. After the U.P. Ordinance no. 8 of 1981 was promulgated which was subsequently replaced by the Act, number of transfers of Principals and teachers were challenged by means of writ petitions under Article 226 of the Constitution in this Court. This Court in Raghunandan Prasad Bhatnagar v. Administrator, Committee of Management Gandhi Vidyalaya Intermediate College Khekhra district Meerut, 1985 UP LB EC 346, has held that such transfers, in fact, are fresh appointments and, therefore, invalid. The case went up in appeal to the Supreme Court and the Supreme Court in the case of Om Prakash Rana vs. Swaroop Singh Tomar & another upheld the decision of this Court rendered in Raghunandan Prasad Bhatnagar's case. That case is reported in : AIR 1986 SC 1672. After a Full Bench decision of this Court, writ petition no. 9102 of 1981, wherein the transfer of Suresh Prasad Tripathi was challenged came up for hearing before a Bench of this Court and this Court on 22nd November, 1983 following the decision of Full Bench, allowed the writ petition and quashed the order of transfer dated 30th June, 1981. As a result of decision in writ petition No. 9102 of 1981. the District Inspector of Schools, Gorakhpur on 13 -1 -1987 directed the Committee of Management Nautanwa College to relieve Suresh Prasad Tripathi as Principal of the college. It is alleged that in compliance thereof Suresh Prasad Tripathi was relieved from Nautanwa college and was permitted to join his parent Bargadwa college. The applicant being seniormost teacher in Bargadwa college was working as ad -hoc Principal of the college and therefore, is aggrieved by the decision of this Court rendered in writ petition no. 9102 of 1981. This has led the applicant to file -the present petition/review application.
(3.) SRI R.K. Jain, learned Counsel for the applicant argued that the Full Bench decision of this Court in Raghunandan Prasad Bhatnagar's case (supra) which has been upheld by the Supreme Court in Om Prakash Rana's case (supra) is not applicable to the facts of the present case and, therefore, the decision of this Court in writ petition 9102 of 1981 requires review and be recalled. In substance the argument is that this Court as well as the Supreme Court on account of Ordinance no. 8 of 1981 which was subsequently replaced by an Act, has held that transfer of Principal from one institution to another is illegal but in the present case Suresh Prasad Tripathi was transferred prior to enforcement of the Ordinance and Act namely on 30th June, 1981, therefore, his transfer is valid and judgment of Full Bench of this Court as well as the Supreme Court is not applicable. On the other hand Sri Rang Misra, learned Counsel for the Respondents argued that the applicant is neither a person aggrieved nor a necessary party and further there is no ground for review of the judgment and, therefore, no relief can be granted.;