JUDGMENT
Y.R. Tripathi, J.
1. This writ petition involving determination of law point, with the consent of the parties, has been heard on merit.
2. The petitioner, who is senior most Lecturer in M.L.M.L. Inter College, District Faizabad through this writ petition has sought for issue of a writ of certiorari, quashing thereby an order dated 11.2.2003 passed by opposite party No. 3 transferring opposite party No. 9 Principal of Gandhi Vidyalaya Inter College. Nawabganj, District Gonda as Principal of M.L.M.L. Inter College, District Faizabad as also the resolution dated 19.10.2002 passed by opposite party No. 7 giving its approval for transfer of said Uma Shanker Singh, opposite party No. 9 on the post of Principal, M.L.M.L. Inter College, District Faizabad. It has also have been prayed that a direction in the nature of mandamus commanding the opposite parties not to implement the impugned transfer order be given and the opposite parties be directed to consider the case of the petitioner and appoint him on the post of Principal, M.L.M.L. Inter College, District Faizabad with consequential benefits thereof.
3. It appears that opposite party No. 8, Principal of M.L.M.L. Inter College, Faizabad is due to retire shortly on his superannuation and the post held by him is to fall vacant on 1.7.2003. The Committee of Management of M.L.M.L. Inter College, District Faizabad sent intimation of this prospective vacancy through concerned District Inspector of Schools as also forwarded two names of the senior most Lecturers of the College alongwith their service records for their being considered for selection to the post of Principal. In the meantime, opposite party No. 9 who is presently working as Principal in Gandhi Vidyalaya, Inter College, Nawabganj, District Gonda made an application to opposite party No. 7 for his appointment by transfer to the post of Principal, M.L.M.L. Inter College, District Faizabad on which opposite party No. 7 authorized its Manager to issue ‘No Objection Certificate’ and on the basis of the no objection certificate issued by the Manager, the opposite party No. 3 passed the impugned order of transfer of opposite party No. 9 directing him thereby to take over the charge on 1.7.2003 after the post of Principal, M.L.M.L. Inter College falls vacant on 30.6.2003. The petitioner challenges the said transfer order passed by opposite party No. 3 and resolution as contained in Annexure No. 2 to the writ petition passed by opposite party No. 1, inter alia, on the grounds that they are being against public interest and bad in law and arc aimed at completely running the promotional avenue of the petitioner. It has also alleged that this order has been passed without giving an opportunity of hearing to the petitioner and is violative of his rights. The opposite party No. 1 has filed his counter-affidavit supporting the order of opposite party No. 3 and the resolution passed by opposite party No. 7 which according to him are legal and valid.
4. I have heard learned Counsel for the parties at sufficient length and have gone through the materials on record.
5. The main thrust of the arguments raised by the learned Counsel for the petitioner is that the petitioner being the senior most Lecturer and his name having been forwarded by the Managing Committee in accordance with the Regulation 57, a right has accrued to him to be considered for selection to the post of Principal of M.L.M.L. Inter College, hence the post of Principal which is to fall vacant on 30.6.2003 with the retirement of existing Principal A.K. Verma cannot have been directed to be filled up by transfer of opposite party No. 9. Learned Counsel for the petitioner relied on the ratio laid down by the Apex Court in the case of Om Prakash Rana v. Swarup Singh Tomar and
Ors., reported in 1986 UPLBEC 444, Supreme Court wherein it has been held that upon the constitution of Commission under the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (hereinafter referred to as the U.P. Act No. 5 of 1982 for the short), it is no longer possible for a vacancy to the post of Principal, Headmaster or Teacher of the categories mentioned in the Schedule to the said Act to be filed by transfer under Section 16-G(2)(c) of the U.P. Intermediate Education Act, 1921 and the regulations made thereunder. So far as Rana’s case (supra) is concerned, it was decided in the year 1986, in the light of provisions which then existed in the U.P. Act No. 5 of 1982. In the said Act, at the relevant time there was only one source of recruitment of Principal and that was direct recruitment, hence the Apex Court held that regulations framed under Section 16-G(2)(c) of the U.P. Intermediate Education Act, 1921 had ceased to operate from July 14, 1981, the date on which (U.P. Act No. 5 of 1982), came into operation. In view of the decision in liana’s case by the Apex Court, the U.P. Secondary Education Services Commission and Selection Boards (Amendment and Validation) Act, 1991 (hereinafter referred to as the U.P. Act No. 8 of 1991 for the short) has been enacted. By Section 2 of this Act, Section 16 of the U.P. Act No. 5 of 1982 has been amended whereby in Section 16 of U.P. Act No. 5 of 1982 in Sub-section (1) after the existing proviso, the following proviso has been inserted.:
“Provided further that the appointment of a Teacher by transfer from one institution to another, may be made in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.”
6. It has been provided by Section 3 of the U.P. Act No. 8 of 1991 that the above provision shall be deemed always to have been inserted. It has also been provided that notwithstanding any judgment, decree or order of any Court or authority, the appointment of a Teacher by transfer from one institution to another made in pursuance of regulation made under Clause (c) of Sub-section (2) of Section 16-G of the Intermediate Education Act, 1921, on or after July 14, 1981 and before the commencement of this Act, i.e., U.P. Act No. 8 of 1991, shall be and deemed always to have been, valid and lawful as if the provisions of this Act were in force at all material time. Thus, by U.P. Act No. 8 of 1991, the appointment of a Teacher by transfer has been made legal and valid since the date of application of the U.P. Act No. 5 of 1982 and all appointments by transfer to the post of Teacher have been validated in view of this provision and the appointment of a Principal by transfer in recognized institutions has also been recognized and made one of the sources of recruitment to the post of the Principal. The Regulations 55 to 62, thus, made under Section 16-G(2)(c) of the U.P. Intermediate Education Act, 1921 in view of the amendment introduced by the U.P. Act No. 8 of 1991, in the U.P. Act No. 5 of 1982 has become operative and applicable. The arguments, thus, raised by the learned Counsel for the petitioner that the post of Principal in M.L.M.L. Inter College cannot be filled by transfer has no force and is not legally sustainable.
7. It has next been contended by the learned Counsel for the petitioner that since the Management Committee had already forwarded the name of the petitioner in view of the Regulation 57, the appointment of opposite party No. 9 to the post of Principal which has the effect of marring the chance of the petitioner being considered for appointment to that post could not have been made. This argument too does not stand the test of legal scrutiny; first because the case for being considered for selection to the post of Principal is dependant on existence of the vacancy and when the vacancy on which the case of the petitioner was to be considered has already been filled by one of the sources of recruitment provided under the law the question of consideration of the name of petitioner for selection on that post does not arise. Secondly, I am afraid if the filling up of the vacancy of Principal in M.L.M.L. Inter College, District Faizabad will have any impact on the prospect of petitioner being selected to the post of Principal. It is not disputed that the post of Principal is not promotion post and it has to be filed up by direct recruitment or by transfer. By transfer of opposite party No. 9 from one College to another there can be no reduction in the total vacancy and the petitioner shall have an opportunity of making an application when the vacancies for the post of Principal are advertised. No vested right of the petitioner exists to be considered for appointment simply by his name ‘having been recommended by opposite party No. 7 for being considered for selection. It is also worthwhile to note that the regulation making power is subject to the statutory provision under which the regulations are made. The Regulations 55 to 62 were made when there was no provision in the said U.P. Act No. 5 of 1982 about filling of the post of Principal by transfer. The only source 6f appointment was direct recruitment. Appointment to the post of Principal by transfer was legalized by U.P. Act No. 8 of 1991 with retrospective effect validating the transfer of Teachers from the date of commencement of U.P. Act No. 5 of 1982 but the Regulations 55 to 62 referred to above and framed earlier remained undisturbed, though they were required to be amended to keep pace with the amendment made by the U.P. Act No. 8 of 1991. It is well-settled that the Rules and Regulations which are subordinate legislations cannot override the statutory provisions of statute. They rather flow from the statute and cannot be taken to control or restrict the application of statutory provisions. Thus, there being statutory provision of the appointment of Principal who is covered by the definition of word ‘Teacher’, any provision in Regulation cannot be allowed to nullify it. The right of the petitioner, therefore, of his being considered for selection to the post of Principal by virtue of his name having been forwarded by the Management was till that post remained vacant and the exercise of selection was going on. Once, that post was filled up by one of the modes of recruitment provided under the Act, the petitioner cannot legally enforce his right of being considered for selection to that post.
8. In view of the aforesaid discussions, I do not find any merit whatsoever in this writ petition which is liable to be dismissed. The writ petition is accordingly dismissed. In view of the facts and circumstances of the case, I make no order as to costs.