- (1.) HEARD Sri P.N.Tripathi, learned counsel for the petitioner and Sri Satyam Singh, Advocate, holding brief of Sri S.N.Singh, learned counsel for the respondents.
(2.) THE petitioner is seeking transfer on the post of Principal in Dwarika Prasad Intermediate College, Dashrathpur, Jaunpur, which fell vacant on 30.6.2013 due to retirement of Sri Jagat Narain Dwivedi, the person holding the said office. The petitioner claimed to have moved transfer application on 6.12.2013. However, in the meantime, U.P. Secondary Education Service Selection Board has already initiated process of direct recruitment on the said post and published advertisement no.03/2013 in daily newspaper Dainik Jagran dated 1.1.2014. The petitioner claim that said advertisement cannot proceed and District Inspector of Schools, Jaunpur, is also interested for cancellation of said advertisement but since respondent no.2 has proceeded with the selection process, this writ petition has been filed seeking writ of mandamus directing respondent no.2 to cancel the advertisement for the post of Principal.
(3.) A Division Bench of this Court in Smt. Amita Sinha Vs. State of U.P. and others, 2008 4 ESC 2799 has held that once process of selection by direct recruitment has begun by issuance of an advertisement inviting applications, the same cannot be filled in by transfer. This decision has also been followed by another Single Judge in Raja Ram, Etc. Vs. State of U.P. and others,2009 10 ADJ 585, wherein in para 35, this Court said as under: "So far as the second issue qua appointment by way of transfer of a teacher against advertised vacancy is concerned, a Division Bench of this Court in the case of Smt. Amita Sinha Vs. State of U.P. and others, 2008 4 ESC 2799 has held that once the process of selection by direct recruitment has begun by issuance of an advertisement inviting applications, the same cannot be filled by transfer. Hence in view of the said Division Bench Judgment, appointments made by transfer against an advertised vacancy of Advertisement No.1 of 2005 is rendered illegal and of no consequence." Again this matter has also been considered by a Full Bench of this Court in Prashant Kumar Katiyar Vs. State of U.P. and others,2013 2 UPLBEC 971, wherein this issue has been considered in paras 43, 44 and 45 of the judgment as under: "43. Taking up the case of transfer, which can be done unilaterally and even bilaterally by exchange of teachers, has to be done on resolutions passed by the two institutions that are to allow such appointment by way of transfer. If there is an application of any such teacher seeking appointment by way of transfer the same has to be forwarded to the competent authority as per the regulations meant for such appointment under Chapter III of the U.P. Intermediate Education Act, 1921 read with provisio to Section 16 of the 1982 Act. This exercise, if any, therefore has to be concluded prior to the determination and intimation of the vacancy to the Board as per the calendar fixed under the rules. The management or a teacher cannot be permitted to make a request for allowing such transfer after the determination of the vacancies and the initiation of the process by the Board. The choice to fill up a vacancy by way of transfer therefore has to be exercised reasonably and its determination has to be finalized prior to the sending of the intimation and not thereafter. This will prevent any confusion or future complication in the process of selection that has to be undertaken by the Board. The authority of the Board to proceed with the selection therefore should not be disturbed by such intervening claims relating to transfer. 44. The provisions for appointment of a teacher by way of transfer from one institution to another is authorised under the proviso to Section 16 of the 1982 Act. Transfer has been made permissible in view of the provisions of the Intermediate Education Act, 1921. Section 16 -G (c) of the 1921 Act authorises appointment by way of transfers for which regulations have been framed under Chapter III, Regulations 55 to 61. The explanation to regulation 61 also indicates that the transfer shall be permitted from one recognised aided institution to another recognised aided institution or from one recognised unaided institution to another recognised unaided institution. The vacancy on account of such transfer if occurring shall be filled up, in case it is reserved, from the same category of a teacher. 45. We therefore find ourselves in full agreement with the view expressed by the division bench in cases relating to transfer as reasoned out in the decision of Smt. Anita Sinha Vs. State of U.P. and others, 2009 2 AWC 1384. There also the vacancy had been notified to the Board and was then advertised. In between a teacher applied for transfer and simultaneously the Board proceeded to hold selection for the same vacancy. The result of the empanelled candidate was declared but a few days before that, the transferee teacher got an order approving her transfer and joined on the post. She challenged the selections but her writ petition before the learned Single Judge failed which was upheld in the division bench judgment noted hereinabove. Para 7 of the said judgment gives extensive reasons and we approve of the same. The only clarification in the said judgment that we like to put on record is that appointment by way of transfer can be made against a vacant sanctioned post or else in cases of unilateral transfer, the same might result in increase of sanctioned strength of teachers which cannot be permitted except with the approval of the Director as per Section 9 of the U.P. High School and Inter Colleges (Payment of Salaries of Teachers and Other Employees) Act 1971 read with Rule 19 of the 1993 Rules framed thereunder for aided institutions and similar terms expressed in the recognition order by the competent authority for unaided institutions.";