AMITAVA LALA,J. - (1.) THIS writ petition has been made by writ petitioner to quash the order dated 23rd June, 2009 by which respondent No.5 was transferred to the institution to work in the category of Lecturer in Economics in which petitioner was working on honorarium basis.
(2.) PETITIONER contended that there is a clause in the Advertisement dated 18th July, 2008 by which it has been said that in respect of the posts, which are already advertised, no one will be transferred and if it is so, it is not legally binding as it has been issued by the Secretary, U.P. Higher Education Service Commission. The advertisement is numbered as 44. In the advertisement, there is a provision that the last date of submitting application is 29th August, 2008. Admittedly, till this date nothing has happened with regard to such advertisement No.44 dated 18.7.2008. However, respondent no.5 was transferred on 23rd June 2009 and he joined on the transferred post on 26th June, 2009. Petitioner herein was also relieved from his service on honorarium basis on 25th June, 2009. It is undoubtedly true that petitioner's intention is to accommodate him so that he can take an opportunity to be regularised. But factually he made an application for regular appointment. Therefore, in case of such regular appointment through U.P. Higher Education Service Commission, cannot be construed also where he was working on the basis of honorarium so that he can have any legitimate expectation with regard to the same. However, he has relied upon an amended portion of the Rules being Uttar Pradesh Higher Education Aided Colleges Transfer of Teachers Rules, 2005. The amendment has taken effect on 15th February, 2006. The amended portion of the Sub-Rule 5 under Rule 4 is being quoted below:- "(5) The teacher shall be transferred against such posts for which salary is paid from the salary payment account. The management of the College before giving it consent to any teacher, shall ensure that no enquiry or any proceeding is pending against the teacher concern and the post to which he has been considered to be appointed by transfer shall not be advertised by the Uttar Pradesh Higher Education Services Commission. The facility of single transfer shall also be available against such post which, till the date of commencement of the Uttar Pradesh Higher Education Aided Colleges Transfer of Teachers (First Amendment) Rules, 2006 have been advertised by the Uttar Pradesh Higher Education Services Commission by the selection on such post has not been made." According to Mr. Ashok Khare, learned Senior Advocate assisted by Mr. K.M. Asthana, learned counsel that by virtue of third paragraph of such sub-rule, single transfer shall also be available against such post which, till the date of commencement of the Uttar Pradesh High Educational Aided Colleges Transfer of Teachers (First Amendment) Rules 2006 has been advertised by the Uttar Pradesh Higher Education Services Commission but the selection on such post has not been made. They interpreted that such Rule is not applicable in the present position, it is restricted only till 15th February, 2006 i.e. the date of commencement of the Rules, as mentioned herein.
(3.) ON the other hand, Mr. M.D.Singh 'Shekhar', learned Senior Counsel appearing for private respondent No.5 and Learned Standing Counsel for the State have contended before us that petitioner has no locus-standi to challenge the transfer of regular teacher, which has been approved by the Commission as well as by the State. Petitioner has been relieved from earlier post and he has joined, therefore, by virtue of the provision of law, he will neither be able to go back to the original post nor he will be accommodated elsewhere because his single transfer is permitted in accordance with law. So far as aforesaid Sub- Rule 5 is concerned, it is prospective in nature.;