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Amar Nath Sharma And Another v. State Of U.P. And Others - WRIT - A No. 13293 of 2004 [2007] RD-AH 5676 (30 March 2007)


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Court No. 35

Civil Misc. Writ Petition No. 13293 of 2004

Amar Nath Sharma & anor Vs. State of U.P.& ors.

Hon'ble Pankaj Mithal,J.

List revised.

Heard Shri R.K. Jain, Senior Advocate, assisted by Shri Rahul Jain, learned counsel appearing for the petitioners and learned standing counsel for respondent Nos. 1 to 4.  Shri Ajit Shukla has  appeared  for respondent no. 5 but Shri R.P. Dubey appearing on behalf of respondent no. 7 is absent despite his name having appeared in the cause list. The record has also been perused.

The petitioners who are senior most teachers in Dayanand Inter College, Khorabar, District Gorakhpur have challenged the order dated 23.8.2003 (Annexure -11 to the writ petition) passed by the Additional Director of Education by which he has transferred respondent no. 7 Shri Kaushal Kishore Singh as Principal to the above mentioned college. The respondent no. 7 before the above transfer order was working as a teacher in Bhumidhar Inter College, Sikriganj, District Gorakhpur.

The contention of the learned counsel for the petitioners is that the impugned transfer order has been passed in exercise of powers under Regulation 55 of Chapter III Regulations framed under the Intermediate Education Act, 1921.  The said Regulation provides for transferring only permanent teachers of a college to another college with the consent of the Management of the concerned colleges.  The respondent no. 7 was only a temporary teacher and therefore he was not liable to be transferred.  His transfer has adversely affected the rights of the petitioners to be promoted as Principal of the above college being the senior most teacher working therein.

No doubt the respondent no. 7 had been selected by the U.P. Secondary Education Services Selection Board and was directed to join as teacher in Bhumidhar Inter College, Sikriganj, District Gorakhpur, but the said selection was not given effect to and ultimately the District Inspector of Schools vide order dated 19.2.2003 (Annexure 7 to the writ petition) gave temporary appointment to the respondent no. 7 in exercise of powers under section 4(4) of the U.P. High School and Intermediate Colleges (Payment of Salaries of teachers and other employees) (Amendment) (Second) Ordinance, 1998.

It may not be out of context to mention that the aforesaid Ordinance promulgated on 30.10.1998 automatically lapsed as it was not converted into an Act.  Therefore, no order of appointment under the said ordinance could have been given by the District Inspector of Schools on 19.2.2003 after it was allowed to lapse.

A perusal of the order of the District Inspector of Schools dated 19.2.2003 reveals that the respondent no. 7 was appointed purely on temporary basis. He was never given any permanent appointment and there is no subsequent order or resolution of any competent authority regularizing or making permanent the services of the respondent no. 7 temporary.  In view of the above, the respondent no. 7 was only a temporary teacher who had never acquired any permanent status.

Regulation 55 of the regulations contained in Chapter III of the Intermediate Education Act  provides for the transfer of only a permanent teacher from one college to the other.  There is no provision for transferring a temporary teacher. Therefore the respondent no. 7 was not liable to be transferred.

In view of the above, the impugned order of transfer of respondent no. 7 from Bhumidhar Inter College, Sikriganj, District Gorakhpur to Dayanand Inter College, District Gorakhpur is patently illegal and without jurisdiction.  It is, accordingly quashed.

Therefore, the writ petition is allowed.  There is no order as to costs.




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