B. L. Yadav, J. - (1.) THIS writ petition under Article 226 of the Constitution of India is directed against an order dated 10th October, 1990 (Annexure-3) passed by the District Inspector of Schools, Gorakhpur, directing the petitioner Committee of Management of Janta Inter College, Marapar, Kusmahi Bazar, District Gorakhpur (hereinafter referred to as the College) to pay subsistence allowance to the respondent no. 3 Shri, Ashthabhuja Singh, the Principal of the College, and the amount be paid or transferred in his account.
(2.) THE portrayal of the essential facts are that the respondent no. 3 was appointed as the Principal in the College of the petitioner on 19-11-1979 and he was confirmed on 17-2-1980, but some disciplinary proceedings were started against him and, in pursuance of the same he was suspended on 20th July, 1982. Later on he was transferred and he joined as Principal of the Oandhi Mahavidyalaya, Malaya Nagar, Malaya District Ballia. He continued to serve there. THE consequence of the transfer was that the suspension order stood revoked. THE Director of Education sent a letter to the District Inspector of Schools, Ballia, to cancel the order of transfer on the ground of the suspension of the petitioner and, accordingly, the order of transfer was cancelled on 9 7-1984. THE respondent no. 3, Shri Ashthabhuja Prasad Singh challenged that order dated 9-7-19814 by a writ petition no. 9676 of 1984 in this Court which was admitted and the operation of the order dated 9-7-1984 was stayed by an interim stay dated 1-8-1984 (filed as annexure-CA 1 to the counter affidavit file by him), THE result was that the respondent no. 3 continued to work as Principal in the Gandhi Mahavidyalaya, Ballia. However, the said writ petition was ultimately dismissed and against the order, it appears, an appeal has been preferred by the Committee of Management in the Supreme Court which is pending but what was the result there and what was order passed is not clear. But there is nothing to indicate that the petitioner is not working as Principal in the aforesaid college at Ballia. THE arrears of subsistence allowance was also remitted to the respondent no. 3 who partly returned and party appropriated it. Consequently, it cannot be said that the petitioner was avoiding payment of subsistence allowance to the respondent no. 3. Sri R. S. Misra, learned counsel for the petitioner, urged that the suspension order of the respondent no. 3 was revoked consequently and he is working in the aforesaid college at Ballia. The impugned order directing the payment of arrears of substance allowance to him was manifestly erroneous as the word 'suspension' obviously means to debar from exercise of function, or work. As respondent not 3 is working as Principal at Billia in the said college, there is no question of payment of subsistence allowance. Sri U.S.M. Tripathi, learned counsel for the respondent no. 3 refuted effectively the submissions of the learned counsel for the petitioner. It has beta averred in the paragraph 20 of the counter affidavit that the order of transfer of respondent no. 3 was cancelled on 9-7-1984 and against that he has filed a writ petition in which a stay order was obtained from this Court, but ultimately, that writ petition was dismissed and the legal effect would be that the petitioner would be deemed by implication to be suspended. Consequently, he was entitled to the subsistence allowance and the impugned order was correct.
(3.) THE point for determination in this case is as to whether the respondent no. 3 after having joined as Principal in the said College at Ballia can be deemed to continue under suspension as is the case of the respondents. Suffice it to say that in the counter affidavit filed by the respondent no. 3 it has not been specifically stated that the respondent no. 3 was not working as Principal in the College at Ballia. THE judicial notice has to be taken that the U. B. Secondary Education Services Commission and Selection Board (Amendment and Validation) Act, 1991 (U.P. Act No. 8 of 1991), for short 'Amendment Act', was enforced. By this Amendment Act section 16 of the U. P. Secondary Education Services-Commission Selection Board Act, 1982 (in brief the Act) has been amendment and a Proviso has been added in it. Section 16 after the existing proviso is to the following effect: "Provided 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) to Section 16-G of the Intermediate Education Act, 1921." Further, section 3 of the Act provides that notwithstanding any decree or order of any court in respect of transfer of a teacher from one institution to another, the order of transfer would be deemed to be valid and lawful and this provision would be deemed to be operative at all material times.;