JUDGMENT

J.N. Dubey, J. - This writ petition is directed against the Order dated 02-06-1984 of the District Inspector of schools, Muzaffarnagar refusing to accord his approval to the proposed transfer of the Petitioner from Junta Jana Dan Intermediate College, Baser to Kayaker Intermediate College, Bacharach, district Muzaffarnagar , Under Regulation 55 of Chapter III of the regulations, framed under the U.P. Intermediate Education Act.

2. It appears that the Petitioner Marsh Kumar who is a permanent Principal of the Junta Jana Dan Intermediate College moved an application to the Manager of the College on 10th May, 1985 for transferring him to Kalyan-kari Intermediate College, Bacharach in place of the opposite party No. 2 Marine Varma. The Committee of Management of the College considered the matter in its meeting held on 17-05-1984 and accorded its approval to the transfer. Meanwhile on 14-05-1984 the opposite party No. 2 also moved a similar application to the Manager of his College for transferring him to Junta Jana Dan Intermediate College in place of the Petitioner. The Committee of Management of Kayaker Intermediate College also accorded its approval to tire transfer on 16-05-1985. The Manager of the Kayaker Intermediate College forwarded the proposal for mutual transfer of the Petitioner and the opposite party No. 2 to the District Inspector of Schools on 18-05-1984 for his approval Under Regulation No. 55. The District Inspector of Schools, however, refused to accord his approval to the proposed transfer on 02-06-1984 on the ground that the transfers Under Regulation 55 have been banned by the Director of education. U.P. after the commencement of the U.P. Secondary education Services Commission and Selection Boards Act (hereinafter referred to as the Commission Act) Feeling aggrieved, the Petitioner has approached this Court Under Article 226 oi the Constitution.

3. We have heard the learned Counsel for the parties and have perused the record.

4. The learned Counsel for the Petitioner contended that the orders of various Education authorities referred to in the impugned order of the District Inspector of Schools have no application to the lasts of the present case and the District Inspector of Schools erred in refusing to grant approval to the proposed transfer on the basis thereof. On the other hand, the learned Counsel for the opposite parties contended that no transfer could legally be made Under Regulation 55 after the commencement of the Commission Act and as such the District Inspector of Schools committed no illegality in refusing to accord approval to the proposed transfer more so when the opposite party No. 2 had already attained the age of superannuation and was to relinquish the folly-e of tire Ironical, Kayaker Intermediate College at the end of that academic year on 30th June, 1984 and that the vacancy in the said office had already been intimated to the Commission. He further contended that the requirements of Regulations 55 to 62 had not been complied with and, therefore, even if such transfers were not banned by the Director of Education, U.P., the proposed transfer could not be legally approved. Neither the transfer application was addressed to the District Inspector of Schools as required Under Regulation 55 nor the opposite party No. 2 had given clear consent for the mutual transfer. According to the learned Counsel the conditional consent of the opposite party No. 2 could not be made a basis for the mutual transfer.

5. In Raghunandan Prasad Bhatnagar v. Administrator, Committee of Management, Gandhi Vidalia Intermediate College, Chakra, District Merit 1985 Edu. Cas 84 : 1985 AWC 303 a Full Bench of this Court Ruled

"A transfer cannot be made a subterfuge for making 'appointment' with respect to which the power vests only in the Commission. If the view in Rattan Pal Singh's case (supra), is allowed to prevail and appointments by transfer are held permissible to fill vacancies, it would defeat the ver