Allowed

Abhishek Kumar Dwivedi v. State of U.P. and 3 Others

Allahabad HC23 Nov 2022WRIA/7720/2020

Case brief

AI extract

What is this about?

Petitioner challenged orders rejecting his transfer application between two educational institutions. The Court held statutory timelines were directory, quashed technical rejections, and remitted the matter for a fresh decision based on the original application.

What did the court decide?

Impugned orders of Director Secondary Education and DIOS quashed; matter remitted to Director to pass fresh order on petitioner's original application within one month.

Abhishek Kumar Dwivedi Vs State of U.P. and 3… — Education and Admissions | Allahabad HC (2022)

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Court No. - 36

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Case :- WRIT - A No. - 7720 of 2020

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Petitioner :- Abhishek Kumar Dwivedi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vashishtha Tiwari Counsel for Respondent :- C.S.C.

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Hon'ble Saumitra Dayal Singh,J.

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Heard learned counsel for the petitioner and Sri S.P. Sharma learned Additional Chief Standing Counsel for the State respondents.

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Challenge has been raised to the orders dated 04.10.2019 passed by the Director Secondary Education and 24.7.2020 passed by the DIOS, Sonbhadra. Those orders have the effect of rejecting the petitioner's application seeking transfer from Aditya Birla Intermediate College, Renu Sagar, Sonbhadra to Adarsh Intermediate College, Mirzapur.

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Undisputedly, the petitioner was regularly selected on the post of Assistant Teacher (Arts). His initial appointment was made at Aditya Birla Intermediate College, Renu Sagar, Sonbhadhra. Pursuant to earlier litigation, the above institution was taken out of grant-in-aid scheme in compliance of the order dated 20.3.2018 passed in Misc. Single No. 26861 of 2017, Committee of Management Aditya Birla Intermediate College Vs. State of U.P. and Others. Consequently, the State Government issued Government Order dated 09.7.2018. In short the said Government Order provided for pay protection of the petitioner and other similarly situated persons working at Aditya Birla Intermediate College, Renu Sagar, Sonbhadra and also enabled for transfer of such persons from that institution to other recognised and aided institutions. In compliance thereto, the petitioner applied and obtained No Objection to the transfer

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from Aditya Birla Intermediate College to Adarsh Intermediate College, Mirzapur. Consequently, the petitioner made an application to the Director Secondary Education dated 22.3.2019 seeking such transfer. Since that application was not being decided, petitioner approached this Court by means of Service Single No. 12204 of 2019, Abhishek Kumar Dwivedi Vs. State of U.P. It was disposed of by order dated 30.4.2019 with the following observations:

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"Without entering into the merits of the issue, the opposite party no. 2 i.e. Director, Secondary Education, U.P., Lucknow is directed to dispose of the representation of the petitioner dated 22.2.2019 which is contained in Annexure no. 7 to the writ petition with speaking and reasoned order, strictly in accordance with law following the relevant Government Orders expeditiously, say within a period of three months from the date of production of the certified copy of this order.

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The competent authority shall communicate the decision on the representation to the petitioner forthwith.

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Writ petition is finally disposed of."

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The said order was placed before the Director Secondary Education on 21.5.2019.

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Upon such compliance made by the petitioner, he was visited with the impugned order dated 04.10.2019 passed by the Director Secondary Education stating that the application made by the petitioner was outside the time limit 30 May to 30 June under the Government Order dated 16.5.2018.

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Not agitating the matter at that stage, the petitioner waited for another year and this time filed an application on 11.6.2020, through proper channel i.e. DIOS, Sonbhadra. Instead of forwarding the same to the Director, on the second occasion, the DIOS Sonbhadra on the reasoning that the claim made by the petitioner has already been rejected by the Director by order dated 04.10.2019. Similar communication has then been issued to the petitioner on 04.7.2020 by the DIOS, Mirzapur.

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Having heard learned counsel for parties and having perused

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the record, in the first place, the timelines indicated in the Government Order dated 16.5.2019 are not mandatory but directory. Even otherwise, in the present case the petitioner had approached the Director before time i.e. on 22.2.2019. Even then it was not open to the Director Secondary Education to reason that the application was beyond time inasmuch as that authority had been commanded by this Court to decide the petitioner's application, on merits.

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Once an administrative authority has been visited with the writ of mandamus to decide the claim on merits, it may never be open to such authority to defeat the claim on hyper technicalities. Only in cases where inherent jurisdiction is lacking, a doubt may arise. However, in the facts of the present case where the petitioner had acted with diligence and applied within time and especially in view of the fact that the order of this Court was served on the Director on 21.5.2019 barely nine days before the time stipulated in the Government Order dated 16.5.2018, the rejection of the claim by the Director is wholly contrary to law and in the teeth of the direction issued by this Court on 30.4.2019 in Service Single No. 12204 of 2019.

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Similarly the order passed by the DIOS rejecting the second claim made by the petitioner (which undisputedly was within the time stipulated under the Government Order dated 16.5.2018) is unreasoned. Even if the order dated 14.10.2019 was to be sustained, the Director had only rejected the claim on technicality. Therefore, the claim of the petitioner made in the following year had to be dealt with on its own merits. To reject the claim is not only unjust but plainly in conflict with the earlier decision of this Court in Misc. Single No. 26861 of 2017 as also the Government Order dated 09.7.2018 which allows for transfer of existing teaching faculty and non teaching staff of the institution Aditya Birla Intermediate College to other

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institutions. It may be noted that the said Government Order does not fix any timeline within which such transfer may be sought or may be granted.

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In face of the undisputed facts of the case, the spirit of the Government Order dated 09.7.2018 would prevail to compel the respondents to deal with the petitioner's second transfer application notwithstanding the technical rejection of the first application. Accordingly, the order dated 04.10.2019 passed by the Director Secondary Education and the order dated 24.7.2020 passed by the DIOS Sonbhadra are quashed. Much time has already passed. The matter is remitted to the Director to pass a fresh order on the petitioner's original application dated 22.2.2019 after obtaining proper report from the DIOS Sonbhadra and the DIOS Mirzapur with respect to transfer sought by the petitioner. Such exercise may be completed within one month from today. Subject to administrative convenience, it is left to the discretion of the Director to give effect to the order of transfer (that may be passed in consequence of this order) with effect from the next academic session.

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The writ petition is accordingly allowed .

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Order Date :- 23.11.2022 Faraz

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Digitally signed by FARAZ AHMAD Date: 2022.11.23 17:05:49 IST Reason: Location: High Court of Judicature at Allahabad

Abhishek Kumar Dwivedi v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Abhishek Kumar Dwivedi v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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