Rajes Kumar, J. - (1.) HEARD Sri T.N. Tiwari, learned Counsel for the peti tioner, Sri V.K. Singh, learned Counsel appears on behalf of respondent No. 7 and learned Standing Counsel appears on behalf of respondent Nos. 1 to 5.
(2.) BY means of the present writ petition, petitioner is challenging the or der dated 15.3.2003 passed by Additional Director of Education (Secondary) Allahabad, Annexure-3 to the writ petition transferring the respondent No. 7 from Chandra Shekhar Azad Inter College, Deogaon, district Deoria to Sewa Samiti Banwarilal Inter College, Deoria. Brief facts of the case are that the petitioner was lecturer in the inter mediate college known as Sewa Samiti Banwarilal Inter College, Deoria, which was duly recognised. The petitioner was initially appointed as Lecturer in Zoology on 8.7.1967 and was placed on probation for a period of one year and was confirmed as Lecturer on 8.7.1968. Petitioner was granted selection grade w.e.f. 1.7.1984 after completing sixteen years of service and subsequently, he was given promotional scale of lecturer's grade on 1.7.1997. It is claimed that on the retirement of Sri Krishna Mohan Srivastava on 30.6.2006, the petitioner became the senior most lecturer of the college and, therefore, the petitioner was entitled to be appointed as officiating principal of the college. Petitioner at tained the age of superannuation of 62 years on 1.1.2009 but as per the Government Order he may continue for the remaining period of session, which expires on 30.6.2009. In the writ petition, it is stated that with regard to the post of principal there was a dispute between the two lecturers, claiming them selves to be the senior most lecturers of the college, namely, S/Sri Yogendra Mani Tripathi and Girijesh Prasad Shahi, which led to the filing of Writ Petition No. 22908 of 1989, Yogendra Mani Tripathi v. State of U.P. and others. In the aforesaid writ petition, interim order was passed on 7.5.1991 restraining the respondents from proceeding for selection and appointment of principal in Sewa Samiti Banwari Lal Inter College, the said writ petition was dismissed in default on 22.1.2004. It is also stated that the transfer order of the respon dent No. 7 was challenged by one Sri Ram Krishan Mishra by way of Writ Petition No. 27218 of 2003, who claimed himself as senior most lecturer of the college. In the said writ petition, this Court on 1.7.2003 has stayed the opera tion of the transfer order dated 15.3.2003 for a specified period. However, the interim order dated 1.7.2003 was vacated on 13.8.2003. Learned Counsel for the petitioner submitted that the transfer order is bad in law as on the day when the transfer order was passed, interim order dated 7.5.1991 passed in Writ Petition No. 22908 of 1989 was in operation wherein the respondent No. 3 was restrained from proceeding for selection and apportionment of principal in Sewa Samiti Banwarilal Inter College. He submitted that the transfer order was made without proper approval by the competent authority. He further submitted that the petitioner is challenging the transfer order dated 15.3.2003 in the year 2007 when the petitioner became the senior most lecturer on 30.6.2006 and had got the right to be appointed as of ficiating principal of the college.
(3.) SRI V.K. Singh, learned Counsel appearing on behalf of respondent No. 7 submitted that the petitioner has attained the age of superannuation on 1.1.2009 and, therefore, the petitioner cannot be appointed as officiating prin cipal. He submitted that the petitioner cannot claim any relief after attaining the age of superannuation to be appointed as officiating principal during the period when he was allowed to continue for the remaining period of session. In support of his contention he relied upon the Division Bench decision of this Court in the case of Hari Om Tatsat Brahma Shukla v. State of U.P. and others. He submitted that in case, if the transfer order dated 15.3.2003 is being set aside, the petitioner is not going to get any relief and, therefore, the petition is liable to be dismissed on this ground alone. He submitted that the respondent No. 7 was selected by the Board as Principal. The said selection has been upheld by the Apex Court finally. He further submitted that it is wrong to say that the respondent No. 7 has been transferred without following the proper procedure. Having heard learned Counsel for the parties, I have perused the nec essary documents and given my anxious consideration to the rival submission of the parties.;