- (1.) D. K. Seth, J. The short hut simple question arising in this case is as to whether the order dated 8th April 1987. (Annexure '8' to the writ petition) cancelling the order dated 2nd July 1985 (Annexure T) transfer ring the petitioner, a teacher from Jalali Inter College, Jalali, District Aligarh to Bajna Inter College, Bajna, District Mathura, in the lighi of the judgment in the case of Om Prakosh Ratio, v. Swaroop Singh Toman, AIR 1987 SC 1672 could be valid on the enactment of the lit tar Pradesh Secon dary Education Services Commission and Selection Board (Amendment and Validation Act, 1991) hereinafter referred to as 'the Validation Act. '
(2.) THE facts giving rise to the case briefly summarised are that the petitioner was appointed Lecturer on regular basis on 1st October, 1974 in Jalali Inter College, Jalali, District Aligarh, a recognised Institution under the U. P. Intermediate Education Act, 1921, hereinafter referred to as '1921 Act' By an order dated 2nd July 1985 (Annexure T), the District Inspector of Schools ap proved the petitioner's transfer from Jalali Inter College, Jalali to Bajna Inter College, Bajna, District Mathura, a recognised In stitution under the 1921 Act. THEreupon the petitioner joined Bajna Inter College immediately in the month of July 1985 and has been continuing there till the passing of the said order being Annexure '8'. THE petitioner's transfer as aforesaid was can celled by the respondent no. 1 in view of the decision dated 9th May 1986 in the case of Om Prakash v. Swaroop Singh Tomar AIR 1987 SC 1672, referred to above. It is out of this order, the present writ petition arises. By order dated 6th May, 1987, the operation of the order of cancellation was stayed due to which the petitioner con tinued to serve the said Bajna Inter College. One Lala Ram Sheoram, a teacher of Bajna inter College, made an application for impleadment together with an applica tion for vacating the interim order sup ported by affidavit. The said application for impleadment was allowed by order dated 25th July 1996. The learned counsel for the added respondent, pursuant to the prayer made was allowed to rely on the affidavit in support of the application for vacating the interim order as counter affidavit to the main writ petition. Mr. Ashok Bhushan, learned counsel for the petitioner, has stated that no rejoinder affidavit would be necessary sine- he would be relying on a question of law, pure and simple. I have heard Mr. Ashok Bhushan, learned counsel for the petitioner, Mr. Sukhendra Pal Singh, learned counsel for the added respondent and Mr. R. S. Parihar, learned Standing Counsel. Mr. Ashok Bhushan, learned counsel for the petitioners, contends that by reason of the enactment of the validation Act, the effect of the judgment in the case of Om Prakash Rana (supra) cannot affect the order of transfer sought ty be cancelled since the same was validated retrospectively by reason of the enactment of the said Validation Axt. Secondly he contends that since the petitioner's transfer was made prior to the rendering of the judgment in the case of Om Prakash Rana (supra) i. e. on 9th May 1986, the petitioner's transfer made prior to the said judgment could not be affected unless the same is challenged in appropriate proceeding and an order is ob tained thereon from the appropriate Court.
(3.) MR. Sukhendra Pal Singh, learned counsel for the added respondent, on the other hand, contends that by reason of various decisions referred by him in the af fidavit supporting the application for vacat ing the interim order, the petitioner's trans fer order was void ab initio and, therefore, the order of cancellation of the said transfer order, cannot be assailed. According to him, even without the order of cancellation, the petitioner's transfer was void and it has been so held in various decision referred to by him which ultimately have found support by the decision in the case of Om Prakash Rana (supra ). He further sought o contend that the Validation Act could not be retrospec tive in operation. It could operate only prospectively. The Validation Act does not have any effect of wiping out the decision in the case of Om Prakash Rana. It cannot invalidate the law laid down by the Apex Court. Mr. Parihar, learned Standing Coun sel, adopted the submissions made by Mr. Sukhendra Pal Singh and contended that there was nothing wrong in the order (An-nexure '8') impugned. According to him, the Validation Act having been passed in 1991, the order of cancellation cannot be in validated. Inasmuch as in view of the order of cancellation of the order of transfer, the order contained in Annexure T did not have any existence. Therefore, there was no scope for its validation on account of the impact of the Validation Act.;