- (1.) ALOKE Chakraharti, J. The U. P. State Cement Corporation Limited, the respon dent No. 2, a Government Company, runs several cement factory units and for con venience of the children of the employee1 of the cement factory several recognised stitutions were established including two Primary Schools at Churk and Gurma. Both the said institutions are recognised institu tions. The petitioner was aggrieved when one Shri Sitaram Singh, the Head Master of the Primary School, Purani Churk retired and one Sri Bhola Prasad was appointed as Head Master thereof. As petitioner was en titled to be promoted on the said post, Writ Petition No. 13181 of 1984 was moved by the present petitioner which was decided by the Division Bench on 21-12-1984 with a direction for promotion of the petitioner to the said post of Head Master of the Primary School at Churk. An order was passed promoting the petitioner to the post of Head Master and by subsequent amend ment the effect of such promotion was given from 12-7-1984. A subsequent order dated 7-9-1988 was passed by the General Manager of U. P. Cement Corporation Limited transferring the petitioner to the Primary School of Gurma and transferring the respondent No. 4 to Primary School at Churk challenging the same the present writ petition was filed.
(2.) THE U. P. State Cement Corporation Limited filed a counter-affidavit contend ing, inter alia, that the petitioner was originally appointed in the Primary School Gurma in year 1966 and thereafter from time to time transfer orders were passed in respect of the petitioner and as such the petitioner can not challenge such power of transfer from one institution to another in stitution. It is stated that the service of the petitioner is transferable among the schools of Cement Corporation and teachers are also paid emoluments at much higher rate than the emoluments governed by the provision of the Basic Education Act. Petitioner filed his rejoinder-affidavit. Heard the learned counsel for the parties. The main contention of the learned counsel for the petitioner is that the petitioner's service is governed by the U. P. Basic Education Act, 1972 and the U. P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975. It is stated that neither the said Act nor the said Rule permits transfer. Reference has also been made to the provision of U. P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Rule 18 thereof provides for transfer of a permanent Head Master or Assistant Teacher of a recognised School. It is stated that in view of the ap plication of law as aforesaid, the recognised Primary institutions are separate units and the petitioner holding the post of Head Master of one of such Units can not be transferred to another Unit. Rules ap plicable to the said U. P. Cement Corpora tion Limited do not govern transfer matter of the teachers and Head Master of such institution. Reference was made to the case of Om Praka. sk v. Swarup Singh, AIR 1986 SC 1672 for the proposition that in similar circumstances relating to Intermediate Col lege of the State, appointments have been held to be in relation to a specific College and different colleges even owned by dif ferent bodies or organisations. On filling the post of Principal to a college a new contract of employment has been held to have come into existence. It was also taken into consideration that there is no State-level service to which Principals are ap pointed. Reference was also made to the case of B. D. Mehta v. I. D. P. L. , (1990) 3 UPLBEC 1570 wherein also Section 16-H of U. P. In termediate Education Act, 1921 was inter preted and it was held that the colleges run by Indian Drugs and Pharmaceuticals Limited will not be considered to be main tained by Central Government for the pur pose of Section 16-H though the organisa tions running the same are under the Central Government. Further reference was made to the case of Bhagwati Prasad Srivastava v. General Manager, U. P. State Cement Corporation Limited and others, 1995 AWC 985 wherein a Principal of an Intermediate College run by the U. P. State Cement Corporation Limited was held en titled to the benefit of superannuation at the age of 60 years as provided in the educa tion law and not the age of superannuation applicable for the employees of U. P. State Cement Corporation Limited.
(3.) LEARNED counsel for the respon dents Nos. 1, 2 and 3 contended that the relevant educational Rules do not have any prohibition against the transfer and service Rules of the Corporation permit transfer and in such circumstances when Section 16-G of U. P. Intermediate Education Act does not apply in the case of the petitioner, the impugned order is valid and proper. It is further stated that Section 9 of the U. P. Basic Education Act, 1972, though does not provide for transfer but it implies power of transfer. Further contention was made that the concerned Primary School being in the same area the transfer order is not in any way illegal. Reference was also made in this con nection to the case of Shilpi Base v. State of Bihar, AIR 199 ISC 532.;