- (1.) SUDHIR Agarwal, J. The dispute in this appeal is between the appellant Smt. Amita Sinha who was transferred on a vacant post of Assistant Teacher to Indian Girls Inter College, Allahabad and respondent no. 6 Smt. Asha Singh who is a candidate selected by the U. P. Secondary Education Services Selection Board and was empanelled for appointment as Assistant Teacher in that College against the same vacancy.
(2.) IT appears that the appellant had made an application dated 6. 7. 2005 to the Additional Director of Education for her transfer from Bapu Balika Inter College, Faizabad, where she had been working, to the Indian Girls Inter College, Allahabad. The committee of management of Bapu Balika Inter College, Faizabad gave no objection to the appellant's request for transfer on 17. 5. 2005. The committee of management, Indian Girls Inter College, Allahabad also gave its consent on 27. 6. 2005. The request was also accepted by the educational authorities and an order of transfer of the appellant was passed on 8. 5. 2006 by the Additional Director of Education pursuant to which the appellant joined as a Teacher in Indian Girls Inter College, Allahabad on 27. 5. 2006. Before this process of transfer of the appellant had begun, it appears that the management of Indian Girls Inter College, Allahabad had already notified the vacancy to the Commission on 13. 1. 2005. The Commission issued an advertisement on 15. 9. 2005 inviting applications from candidates for direct recruitment in respect of this vacancy also and in pursuance of the selection a panel of selected candidates was notified by the Commission on 26. 6. 2006. Respondent no. 6 was placed in the panel for being appointed in Indian Girls Inter College, Allahabad. However, the appellant had already been transferred to Indian Girls Inter College, Allahabad and respondent no. 6 could not be given any appointment in the College and, therefore, filed the writ petition giving rise to the present special appeal. She prayed for quashing the order of transfer passed in favour of the appellant. The learned Single Judge has taken the view that once the process of selection by the Commission has begun by issuance of an advertisement inviting applications, the vacancy can not be filled by transfer. In this case as the advertisement had already been issued by the Commission, the subsequent appointment of the appellant by transfer was invalid. This order of the learned Single Judge dated 25. 5. 2007 has been challenged in the present special appeal. We have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare on behalf of the appellant and Sri R. K. Ojha for contesting respondent Smt. Asha Singh, Sri A. K. Yadav for the Commission and learned Standing Counsel representing respondents no. 1,3 and 4.
(3.) SRI Ashok Khare, learned Senior Advocate made two submissions. He placed reliance upon the provisions of Section 16 of the U. P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as "1982 Act") and submitted that under the said provision apart from the process of appointment by selection through the Services Commission there are other modes of appointment contemplated. He referred to provisions of sub-section (1) of Section 16 under which vacancy can be filled by promotion under section 12 or from Reserve Pool Teachers under Section 21-B or by regularisation under section 33-A, 33-B, 33-C, 33-D and 33-F. He also drew our attention to the three provisos in Section 16 under which a vacancy can be filled by appointment of a retrenched employee under section 16ee of the Intermediate Education Act, 1921 or by compassionate appointment in L. T. Grade of a dependent of a teacher dying in harness. Section 16 thus contemplates apart from transfer and selection by the Commission various other modes of appointment. The view taken by the learned Single Judge that no appointment by transfer to an institution can be made after the vacancy in the post of teacher in that institution is advertised, is to be tested says Mr. Khare in the light whether the same limitation would apply to other modes of appointment as well because there can be no reason to apply a different standard in other modes of appointment. The other submission made by SRI Khare is that a candidate selected by the Commission does not have an indefeasible right for appointment and a selected candidate can fail to get an appointment in several eventualities and in various situations where for instance, the vacancy may cease to exist on account of abolition of the post or increase in the age of superannuation or for other reasons and failure of the selected candidate to obtain an appointment where the post has already been filled up by another mode of appointment is one of such eventualities. In order to appreciate the contention of learned counsel for the appellant it is necessary to examine the provisions of U. P. Secondary Education Services Selection Board Act, 1982 (for short described as 1982 Act) as well as of the Rules framed thereunder. Sub-section (1) of Section 16 provides that appointments to the post of teachers shall be made by the Committee of Management only on the recommendation of the Board. Sub-section (1) of Section 16 begins with a non-obstante clause and has overriding effect upon the provisions of the Intermediate Education Act, 1921. Sub-section (1) of Section 16 is, however, subject to certain provisions of the 1982 Act relating to appointments by promotion or ad hoc appointments, appointments from the reserve pool or by regularisation of teachers as contemplated under Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33f. Therefore, the contention of Sri Khare that the same limitation should be imposed in respect of all other modes of appointment will not hold good in the category of the above appointment s to which Section 16 (1) is subject. However, we have to consider the matter in the context of the two other modes of appointment mentioned in the provisos namely, the compassionate appointment under the dying in harness regulations as well as in the case of retrenched employees. Before examining the said provision we may also refer to some other provisions of the 1982 Act and the U. P. Secondary Education Services Selection Board Rules,1998 (for short "1998 Rules") which have been framed under the 1982 Act. Section 32 of 1982 Act reads as under: "32. Applicability of U. P. Act No. II of 1921.--The provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act or the rules or regulations made thereunder shall continue to be in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher. ";