Hon’ble Sudhir Agarwal, J.—Heard Sri R.K. Ojha, learned counsel for petitioner and perused the record.

2. Petitioner’s application requesting for transfer from one Primary School to another Primary School has been declined approval by the District Basic Education Officer, Ghaziabad by order dated 26.9.2007 on the ground that the transfer is being sought between two different kind of institutions, namely, from an unaided Primary School to an aided Primary School and in view of Circular dated 1.10.2002 it is not permissible.

3. Learned counsel for petitioner submits that under Rule 18 of U.P. Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as “1978 Rules”), the only requirement is that institution must be a recognized one and if Management of both the institutions agree, the educational authorities cannot decline approval. He also submits that the circular dated 1.10.2002 issued by Secretary of the Board is contrary to Rules and, therefore, it is also liable to be set aside.

4. However, I do not find any force in the submission of learned counsel for petitioner. 1978 Rules are applicable to all the recognized Junior High Schools whether aided or unaided. Rule 18 thereof provides for transfer of a Teacher from one institution to another and reads as under:

“18. Transfer.—(1) A permanent Headmaster or Assistant Teacher of a recognised school may, on application in this behalf, be transferred to another recognised school in which he may be lawfully employed under these rules.

(2) Such application shall be given by the Headmaster or Assistant Teacher, as the case may be, to the District Basic Education Officer through the Manager of the school from which the transfer is sought.

(3) The manager shall alongwith the application for transfer, forward copies of service book and character roll of such Headmaster or Assistant Teacher, as the case may be, to the District Basic Education Officer.

(4) No transfer shall take effect unless it is agreed to by the managements of the concerned recognised schools and is approved under Clause (5).

(5) The approval for the transfer of a Headmaster or Assistant Teacher of a recognised school shall be accorded by—

(i) the District Basic Education Officer in case of transfer from one school to another School within the District;

(ii) the Regional Deputy Director of Education in case of transfer from one School to another School situated in different districts but within the same division;

(iii) Secretary of the Board, in case of transfer from one School to another School situated in different divisions.”

5. This Rule has to be read with the provisions of relevant statutes, namely U.P. Basic Education Act, 1972 (hereinafter referred to as “1972 Act”) and U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (hereinafter referred to as “1978 Act”) since the recognized aided institutions are admittedly governed by these statutes. 1978 Act provides that liability of payment of salary would be on State exchequer in respect to an institution where the appointments are made. There the term “Institution” has been defined in Section 2(e) which reads as under:

“Institution” means a recognised Junior High School for the time being receiving maintenance grant from the State Government”

6. The Institutions governed by 1978 Act are required to function in a regulated manner inasmuch even if they are private institution and recognized by the Board, they cannot employ Teacher on their own but the same have to be against the posts which are created and approved by Director or any other Officer, who may be authorized in this behalf by general or special order by the Director. The Management has no discretion to create post on its own and thereafter claim salary of a person appointed thereon. The said provisions are not applicable to an unaided institution where the discretion lies upon the Management and only for the