IMPORTANT POINT
Once a requisition for a vacancy is sent to the Board, the post cannot be filled by transfer, as established by the U.P. Secondary Education Services Selection Board Rules.

JUDGMENT :

Rohit Ranjan Agarwal, J.

1. The question which needs adjudication by this Court, raised through these two petitions are as to “Whether once the requisition has been sent by the Committee of Management to the U.P. Secondary Education Service Selection Board (hereinafter referred to as “the Board”) in terms of sub-rule (4) of Rule 11 of U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter called as “Rules of 1998”) the post of Principal in an intermediate institution can be filled by way of transfer or the senior most teacher officiating as a Principal is to continue till a duly selected candidate is sent by the Board.”

2. Further, upon the enactment of Uttar Pradesh Education Service Section Commission Act, 2023 (hereinafter called as “Act of 2023”) enforced on 17.08.2023 published in official gazette on 21.08.2023 and the Uttar Pradesh Education Service Selection Commission Rules, 2023 (hereinafter called as “Rules of 2023”) having been enforced from 13.12.2023, whether anything done or action taken in pursuance of Rules of 1998 to continue or not.

3. The question relating to intimation of vacancy to the Board and cessation of power to fill up the vacancy by transfer was before the Full Bench in case of Prashant Kumar Katiyar vs. State of U.P. and others 2013 (1) ADJ 523 (FB). The Full Bench found that once the procedure as per Rule 11(4) was followed and necessary intimation was given to the Board, there vest no power to fill up the vacancy by transfer. Relevant paras 38 to 41 of the judgment are extracted hereas under :

“38. In our opinion if the management has determined the vacancy or the District Inspector of Schools has done it as per Rule 11(4) then in that event the alteration of such determination and intimation is controlled only to the extent as provided by sub-rule (3) of Rule 11 which authorises the management and the Inspector to notify any fresh vacancy that may have occurred after such notification. The management or the District Inspector of Schools therefore has not been empowered under the rules to reverse the determination and it can only add to it, subject to the contingency as contemplated under sub-rule (3) of Rule 11. This however does not take away the power to correct any arithmetical or calculative errors that may have crept into such determination.

39. To our mind, the function of the management and the District Inspector of Schools, therefore, has to follow this procedure and it is trite law that if a statute requires a thing to be done in a particular manner then it should be done in that manner alone and not otherwise. The procedure under the Act and Rules is mandatory and it has to be done in that manner alone. Reference be had to Para 20 and 23 of the division bench judgment in the case of Km. Poonam Vs. State of U.P. 2008 (3) AWC Pg. 2852 and to Para 24 of the decision in the case of U.P. Secondary Education Service Selection Board Vs. State of U.P. 2011 (3) ADJ Pg. 340. The rules have been framed consciously by making a provision of limited alteration in the determination by adding to the vacancies on account of any fresh occurrence during the year of recruitment itself. Thus impliedly no power has been conferred for altering the vacancies already determined and intimated to the Board for the purpose of notification under the Act and Rules. The requisition to fill up the vacancies after having sent to the Board therefore becomes unalterable as the Board proceeds with the advertisement under Rule 12 by publishing the vacancy in accordance with reservation rules and in accordance with the subject-wise and group-wise vacancies against which appointments are to be made inviting applications from candidates giving their preference of the institution which choice has to be indicated by the candidate. At this stage, to upset the procedure after advertisement by giving any further leverage would be to disturb the entire process of selection and if such a concession is given