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PETITIONER: DR. RAMJI DWIVEDI

       Vs.

RESPONDENT: STATE OF U. P. & OTHERS

DATE OF JUDGMENT26/04/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1984 AIR 1506            1983 SCR  (2) 971  1983 SCC  (3)  52        1983 SCALE  (1)474

ACT:      Intermediate  Education   Act,  192l-Section  9(4)  and 16E(10)-Scope of  Selection of  Principal of  non-Government aided college  made on  April 12,1981-By  order dated  April 7,1981 State  Government stopped  all fresh  selections  and appointments- Effect of Governments order.

HEADNOTE:      The Committee  of Management  of a non-Government aided school, by  its resolution dated April 19,1981 appointed the appellant as  Principal of  the college run by it. The order was communicated  to the  appellant on  April 27 198} and he assumed charge  on May 1, 1981. In the meanwhile on April 7, 1981 the  Secretary to  the Government  of U.  P.  Education Department  communicated   by  radiogram   to  the   various authorities the  order of  the Government stopping all fresh selections  and  appointments  of  principals  in  all  non- Government aided secondary schools. A copy of it was sent to the college  by the  District Inspector  of Schools  on  May 1,1981.      Though the appellant continued to function as Principal of the  college the  Committee of Management stopped payment of his  salary on  the ground  that his  appointment was not valid after  the issue  of the  Government order dated April 7,1981.      The appellant  filed a  writ petition under Article 226 of the Constitution praying for a writ of mandamus directing the Committees of Management of the College not to interfere with the  discharge of  his duties  as Principal and also to pay  him  his  salary.  T  he  High  Court,  dismissing  his petition, held that the appellant’s appointment as Principal of  the  college  was  invalid  in  that  the  Committee  of Management had  no power  to set  up the Selection Committee nor had  the Selection  Committee  the  power  to  make  any appointment.      In appeal  to this  Court it was contended on behalf of the appellant  that  on  the  date  of  his  appointment  as Principal the  Committee of Management had the power to make the appointment notwithstanding the fact that the Government had withdrawn that power.      Dismissing the appeal, ^

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    HELD: The  order of the Government became effective the moment it  was issued. The effect of that order was that the Selection Committee had no right to select the appellant nor did the  Committee of  Management have any power to make the appointment. [1979 A-B] 972      The Board  constituted under  the Act  had the power to make regulations and this power could be exercised only with the previous  sanction of the State Government. Section 9(4) specifically confers  power on  the State Government without making any reference to the Board to make, modify or rescind any regulation.  This power comprehend the power to stop all appointments for the time being. Exercising power under this section the  State Government  issued  orders  stopping  all fresh selections  and appointments of Principals in all non- Government aided  schools. The  effect of  the order  was to rescind the  regulation conferring power on the Committee of Management to make appointments of Principals. [978 B-G]      There was  no merit  in the  submission that the letter dated May  1, 1981  had not been received by the Management. [979 D]      If  the   order  was   valid  and  power  to  make  the appointment was  with drawn  or suspended,  it would  not be open to  the Selection  Committee to select the appellant an issue the  order of  appointment to  him. The appointment in that event  would be by a body not authorised to make it and so it was in effective though not invalid. [979 E-F]      Section  16E   (10)  which   provides  that  where  the competent authority  was satisfied  that a  person had  been appointed as Principal in contravention of the provisions of the Act,  it may cancel such appointment after affording him an opportunity  of being  heard has  no application  to  the present case  because power  of appointment conferred by the regulation on  the Committee  of Management was withdrawn or suspended and  therefore the  Committee had no power to make the appointment. 1980 E-Gl

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1340 of 1982.      Appeal by  Special leave  from the  judgment and  order dated the  1st March,  1982 of  the Allahabad  High Court in Civil Miscellaneous Petition No. 6933 of 1981.      G.L.  Sanghi,   R.D.  Upadhaya,  V.K.  Pandita  and  S. Srinivasan for the Appellants.      R. K Garg and S. N. Singh for the Respondent.      The Judgment of the Court was delivered      DESAI, J.  Even with  an ever-widening  control of  the State on the private management of educational institutions, the  minimal   residuary  power  still  enjoyed  by  private management can  be used  to  successfully  harass  a  highly qualified teacher is the tragic lesson of this litigation. 973      Appellant,  a  double  M.A.  and  holding  a  Doctorate applied in  response to  an advertisement  that appeared  in Hindi Daily  Bhirgu A Chetna and Dainik Jagran dated May 18, 1980 for  the post  of a  principal of Shrinath Intermediate College, Garhmalpur  Sahulie, Distt.  Balia  (’College’  for short) issued by the Committee of Management of the College. The Selection  Committee as  envisaged by  sec. 16F  of  the Intermediate Education  Act, 1921 (’Act’ for short) held the interview  on   April  12,  1981.  The  Selection  Committee consisted of  Shri Sudhakar  Tiwari Manager/President of the

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Selection Committee,  Shri Ram  Dularey Tripathi,  Principal Nagrik Degree  College, Jaunpur and Dr. Gauri Shanker Misra, Principal, Narihsun Degree College, Harihaun Distt. Jaunpur. The Selection  Committee unanimously  selected the appellant for appointment  to the  post of Principal. Pursuant to this decision of  the Selection  Committee, the  Manager  of  the Committee of Management of the College issued an appointment order dated  April 27,  1981 to  the appellant informing him that the  Committee of  Management of  the College  vide its Resolution No.  3 dated  April 19,  1981 has  appointed  the appellant as Principal on one year probation in the scale of 550-1200 at  initial pay  alongwith DA  admissible under the rules. The  appellant was required to present himself before the Manager  of the  College and take over the charge within 10 days  of the  receipt of the order of appointment failing which the  appointment would  be void.  On receipt  of  this letter of appointment the appellant presented himself at the College on  May 1,  1981 and  requested the Manager to hand- over charge  to him.  There is  an  endorsement  below  this communication  by   the  Manager   that  the  appellant  was permitted to  take charge.  On the  same day,  the appellant wrote to the Manager of the College that as permitted by him he has  assumed charge of the post of Principal at 7.30 A.M. and has  started functioning.  An intimation of the same was also sent  to the  Distt. Inspector  of Schools, Ballia. The appellant on  the same  day circulated a notice to the staff intimating to them that he has assumed charge of the post of Principal and he has convened an urgent meeting of the staff to be  held on  the same  day after  college  hours  in  the teachers’ room.      It appears  that the State Government was contemplating to bring  about a  radical change  in the  mode, method  and power of appointment of the teaching staff in non-government aided schools and accordingly Secretary to the Government of U.P. Education 974 Department issued an order dated April 7, 1981, communicated by a  radiogram to  the various  authorities.  It  reads  as under:           "From Secretary  to Government  of U.P. Education/      Department  G.  O.  No.  1701/l5-7-FI-1  (27)/81  dated      1.4.81           Stop all  fresh  selections  and  appointments  of      Principals   Headmasters    and   teachers    including      recruitment by  promotion in  all non-government  aided      secondary schools  except minority institutions pending      further orders(.)  District Inspectors  to ensure  non-      drawal of  pay of  teachers appointed after his date(.)      Detailed instructions follow(.)"      Pursuant to the receipt of this radiogram, the District Inspector of  Schools, Ballia  had sent  a copy of it to the College. There  is some  dispute between  the parties  as to whether this  copy of  the radiogram  was  received  by  the Management of the College but there is a letter dated May 1, 1981 addressed  by the District Inspector of Schools, Ballia to the  Manager of Shrinath Intermediate College which reads as under:           "Letter. No.  2/26-62/80-81 dated  1.5.81 Sub:  In      Ref: Appointment of Principals. Sir,           In reference  to letter No. Sri Nath Inter College      dated 27.4.1981  regarding the above mentioned subject,      it is  informed that  as soon  as G.O.  No.  1701/15-7F      (27)/81 dated  7.4.1981 in regard to the prohibition on      appointments is  received in  this office,  it has been

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    sent by  letter No.  60/81-82 dated 8.4.1981 and it has      been received  by the  clerk of your office on 8.4.1981      and the  message of  the G.O.  have been  sent  to  the      experts by telegram.           Hence in  such a situation there is no question of appointment on the post of Principal.                               Sd/-     B.     N.     Pandey,                     District Inspector  of Schools,  Ballia,                                    l.5.1981 975      Serious   dispute   arose   whether   the   appellant’s appointment as  Principal was  valid.  The  controversy  was accentuated-  by  the  conduct  of  one  Jagannath  who  was aspiring to be the Principal and who, it is alleged has some local influence.  The management  did not  pay any salary to the appellant  though he  functioned as  the  Principal  and ultimately the  appellant approached  the High  Court  under Art. 226  of the Constitution praying for a writ of mandamus directing the 5th respondent, the Committee of Management of the College, not to interfere with the work of the appellant discharging his  duties as Principal of the College and also to pay salary. Pursuant to the interim relief granted by the High Court  the appellant  was paid  his salary. To the Writ Petition  filed   by  the   appellant  he  had  impleaded  5 respondents including  the State  of U.P.,  the Director  of Education, U.P, the Deputy Director of Education, VI-Region, Varanasi, District  Inspector of  Schools,  Ballia  and  the Committee of the Management of the College. The petition was primarily contested  by the 5th respondent, the Committee of Management. One  Shri Phul  Deo Pandey filed an affidavit in opposition on  behalf of  the Committee  of Management inter alia contending  that the  appointment of  the appellant was not valid as the power to appoint was withdrawn by the State Government. Reliance  was placed  on the  radiogram in  this behalf.      The High  Court held  that the radiogram dated April 7, 1981 contained an order of the State Government in discharge of its  executive functions  suspending or withdrawing power of appointment  of teaching  staff including  Principal  and therefore the  Committee of Management of the College had no power to  set up  a selection  committee nor  the  selection committee  had   any  power  to  make  any  appointment  and therefore the  appointment of  the appellant alleged to have been made  on May  1, 1981  was not  valid. The  High  Court accordingly dismissed  the Writ  Petition. Hence this appeal by special leave.      Mr. G.  L. Sanghi, learned counsel who appeared for the appellant canvassed  two contentions  at the hearing of this appeal.      It was  urged that  the day  i.e. May  1, 1981 on which appointment of  appellant  was  made  as  Principal  of  the College, the  Committee of  Management had the power to make the necessary  appointment and  the order  contained in  the radiogram had  no effect  on the validity of appointment. It was next  contended that  assuming such  a  power  to  issue radiogram was available to the State Government, 976 if the  appointment was  made without  the knowledge  of the order contained  in the  radiogram, the appointment would be valid. Alternatively, it was contended that in any case once appointment was  mad unless the procedure prescribed in sub- sec.  10   of  sec.  16-F.  Of  the  Act  is  followed,  the appointment of  the appellant  could not be invalidated, and therefore it may be declared that the appellant continues to hold the post of the Principal of the College.

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    Before  we   deal  with   these  submissions,  a  brief reference to  the relevant  provisions of  the Act  would be advantageous. The  Act is  a pre-Constitution Act enacted in 1921 with  a view to acquiring power to establish a Board to take the place of the Allahabad University in regulating and supervising the  system  of  High  School  and  Intermediate Education of  the United  Provinces. It  was more or less an innocuous enactment.  The power  and  authority  enjoyed  by private managements  of educational  institutions  was  left untouched. But  there was  a comprehensive  amendment of the Act by  U.P. Act  No.  26  of  1975.  For  implementing  the provisions of  the Act, sec. 3 envisaged the constitution of a Board.  Sec. 7  prescribes the  power of  the Board  which would also  imply duties  and functions of the Board. Sec. 9 preserves and  protects the  powers of the State Government. Sub-sec. 4 is material and may be extracted:           "(4) Whenever, in the opinion of the State Govern-      ment, it  is necessary  or expedient  to take immediate      action, it  may, without  making any  reference to  the      Board under  the foregoing  provisions, pass such order      or  take   such  other   action  consistent   with  the      provisions of  this Act  as it  deems necessary, and in      particular, may by such order modify or rescind or make      any regulation  in respect  of  any  matter  and  shall      forthwith inform the Board accordingly."      Section 13  confers  power  on  the  Board  to  appoint various committees. Section 15 confers power on the Board to make regulations  with the  previous sanction  of the  State Government (see  sec. 16)  for the  purpose of carrying into effect the  provisions of  the Act.  Sec. 16-A  to sec. 16-I were inserted  by U.P.  Act No.  35 of  1958.  Section  16-A provides  for   a  scheme   of  administration   for   every institution  whether   recognised  before   or   after   the commencement of  U.P. Act  No. 35  of 1958.  The  Scheme  of Administration was to inter alia provide for constitution of a Committee of Management 977 vested with  authority to  manage and conduct the affairs of the Institution.  Sec. 16-F(I)  provides for  setting  up  a Selection  Committee   for  appointment   of  Head   of   an Institution and  sub-sec. 2  provides for  setting up  of  a Committee for  selection of  candidates for  appointment  as teacher.  Sec.   16-D  confers  power  on  the  Director  of Education to  cause inspection  of recognised institution to be made  from time  to time  and sub-clause  2 to sub-sec. 3 inter alia  requires ascertaining  in course  of  inspection whether the  Committee of  Management has  failed to appoint teaching  staff   possessing  such   qualifications  as  are necessary for  the purpose  of ensuring  the  management  of academic standards  in the  Institution or  has appointed or retained in  service any  teaching or  non-teaching staff in contravention  of   the  provisions   of  the   Act  or  the Regulations.      Having browsed  through the  relevant provisions let us turn to the contentions raised by Mr. Sanghi.      The contention  which was put in the forefront was that the date  on which appellant was appointed as Principal, the Committee of  Management had  the power  to make appointment notwithstanding the  fact that  the order  contained in  the radiogram  had  suspended  or  withdrawn  its  power.  While setting out the chronology of events leading to the petition we have  pointed out  that at the meeting of E the Selection Committee held on April 12, 1981 appellant was selected as a Principal. The  question is  whether the Selection Committee had any  power to  make the  selection on April 12, 1981 and

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whether the  Committee of  Management pursuant  or selection had any  power on April 27, 1981 to issue appointment order. It is conceded that relevant regulations  conferred power on the Committee  of management  to make  appointment upon  the recommendation of the Selection Committee. The power to make appointment is  conferred by  the regulations. The Board has the power  to make  regulations under sec. IS and this power can be  exercised only  with the  previous sanction  of  the State Government; Thus the State Government has authority to sanction or  not to  sanction the regulation proposed by the Board. Every  such recognised institution must have a Scheme of Administration as envisaged by sec. 16A and the Scheme of Administration envisages  the setting  up of  a Committee of Management and  the Committee of Management has the power to set up a Selection Committee for selecting the candidate for appointment as Head of an Institution as provided in sec 16- F. This power is being regulated by the regulations, 978 Thus it becomes clear that the Board enacts regulations. The regulations confer  power of  appointments including  of the appointment  of  a  Head  of  the  Institution  and  of  the teachers.      Sub-sec.  4   of  s.   9  which   has  been   extracted hereinbefore confers  power on  the State Government without making any  reference to  the Board to make an order or take such other  action consistent with the provisions of the Act as it  deems necessary  and in particular, may by such order modify or  rescind or  make any regulation in respect of any matter. It  would thus  unquestionably transpire  that while enacting  the   regulations  prior  sanction  of  the  State Government is  necessary and  under sub-section  4 of sec. 9 the State  Government enjoys  the power  to make,  modify or rescind any  regulation. Armed  with this  power  the  State Government issued  an order dated April 7, 1981 stopping all fresh selections  and appointments of Principals etc. in all non-government aided  schools. Sri Nath Intermediate College is non-government  aided school.  The effect  of  the  order conveyed by the radiogram would be to rescind the regulation conferring power  on the  Committee of  Management  to  make appointment  and  withdrawing  and/or  suspending  power  of appointment of  Principal and  teachers. The issuance of the order is  not in  dispute. The  argument, in the High Court, was that  the State  Government had  no such  power and that even if  sub-sec (4) is deemed to confer such a power it has to be  reading just  a position  with the power conferred on the State Government by sub-sections (1), (2), (3) preceding sub-sec. (4)  of sec.  9. The  High Court  therefore had  to examine the  width and  ambit of  the executive power of the State Government  in exercise of which according to the High Court, the  order contained  in the radiogram was issued. We need not  go that  far because  in our  opinion sub-sec. (4) specifically confers  power on  the State Government without making any reference to the Board to make, modify or rescind any regulation as also make such other order consistent with the provisions of the Act. This power of wide amplitude will comprehend the  power to  stop all appointments for the time being. And  the power  appears to  have  been  exercised  as Government  was  contemplating  taking  away  the  power  of private management  of non-government  aided schools to make appointment of  teachers including  Principals. In  order to avoid  forestalling   of  governmental   action  by  private managements, the  power to  make appointments  was suspended for the  time being.  As pointed out earlier, the regulation confers  power  on  the  Committee  of  Management  to  make appointment. The regulation was

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979 enacted by  the Board  with the  prior sanction of the State Government. The  State Government  could  be  said  to  have rescinded that  A regulation conferring power of appointment or at  any rate suspend the power conferred on the Committee of  Management   to  make   appointment.  The  order  became effective the  moment it is issued. The effect of this order is that  the Selection  Committee had no right to select the appellant nor  the Committee  of Management had any power to make the appointment.      Mr. Sanghi  further contended that this order was never received by  the institution  and therefore the power of the Committee of  Management notwithstanding  the fact  that its power to  make appointment was suspended remained intact and therefore the  appointment of  the appellant would be valid: There is no merit in the submission because the letter dated May 1,  1981 which  has been  extracted hereinafter  clearly shows that  on April  7, 1981  the order  contained  in  the radiogram  was   communicated  to   the   Manager   of   the Institution. There is no affidavit in opposition of the then Manager of  Institution or  any responsible  person then  in charge of  the management  denying the receipt of the letter dated May  1, 1981.  This letter shows that on April 8, 1981 the Institution  had received  the order  that the  power of appointment of Principal has been withdrawn or suspended. If the order  was valid  and  power  to  make  appointment  was withdrawn or suspended it would not be open to the Selection Committee to  make and  select appellant  nor the Manager on behalf of  the Committee of Management can issue appointment order  dated  April  27,  1981  to  the  appellant  and  the appointment  of  the  appellant  would  be  by  a  body  not authorised to  make the  appointment and  hence  ineffective though it may not be invalid.      In view  of the  finding that  sub-sec. (4) of s. 9 did confer power  on the  State Government  to make,  modify  or rescind the  regulation or  make any  other order consistent with the provisions of the Act, the second contention of Mr. Sanghi is equally bound to fail.      It is  therefore necessary  to turn  to the alternative contention based  on sub-sec.  (10) of s. 16-E. The marginal note of sec. 16-E reads:           "Procedure for  selection of  teachers and head of      institutions.  Sub-sec.   (I)  confers   power  on  the      Committee of the Management to make appointment." 980      Sub-sec. 10 provides as under:           ("10.) Where the State Government., in case of the      appointment of  Head of Institution and the Director in      the  case   of  the   appointment  of   teacher  of  an      institution is  satisfied  that  any  person  has  been      appointed as  Head of  Institution or  teacher, as  the      case may be, in contravention of the provisions of this      Act, the  State Government  or, as the case may be, the      Director may,  after affording  an opportunity of being      heard to  such person, cancel such appointment and pass      such consequential order as may be necessary."      It was  urged that if the State Government is satisfied that any person has been appointed as head of an Institution in contravention  of the  provisions of  the Act,  the State Government after  affording an opportunity of being heard to such  person   cancel  such   appointment  and   pass   such consequential  order   as  may   be  necessary.  Mr.  Sanghi vehemently contended that if the appointment of appellant is in contravention  of the  provisions of  the Act,  the State Government was bound to hear the appellant before making any

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consequential  order.   Sub-sec.  (I   O)  provides   for  a contingency where  an appointment  is  made  and  the  State Government later  on comes  to know that the appointment has been made  in contravention  of the  Act  in  respect  of  a particular individual  that the  rules  of  natural  justice require that he may be heard before making an order, adverse to such  person. The  present case  is not  one which can be dealt with  or was  required to  be dealt  with by  sub-sec. (10).  The  situation  is  that  the  power  of  appointment conferred by  regulation on  Committee of Management of all- non-government   aided   institutions   was   withdrawn   or suspended. The  Committee of Management had no power to make the appointment.  It cannot be said that the appointment was in contravention of any provision of the Act. Therefore sub- sec. (10)  is not  attracted in this case and the contention must fail.      Undoubtedly appellant  is a  highly  qualified  person. There was  nothing hanky  panky in  his appointment.  If the power to  make appointment  was riot suspended we would have no difficulty  in upholding the appointment of the appellant and we  are  not  oblivious  to  the  machinations  of  Shri Jagannath, who  possibly thought that the appellant would be a formidable  rival and  wanted him  to be  out of  way. The private management, at the instance of Shri 981 Jagannath appears  to have  subsequently backed out from the appointment of  the appellant  which at  one stage they were willing to defend. But as there was no power of appointment, we are  unable to help the appellant. However, we would like to make  it very  clear that  the appointment  was otherwise valid, though  ineffective and if appellant under the orders of the  High Court  functioned as  Principal, discharged his duties and  was paid, no question of recovery of amount paid to him  could arise  and  neither  the  Government  nor  the Committee  of   Management  nor  the  Institution  would  be entitled to recover any salary paid to the appellant.      The State  Government promulgated  the  U.P.  Secondary Education Service  Commission and Selection Board ordinance, 1981 (8  of 1981)  which was replaced by the act bearing the identical name. The Act envisages setting up of a Commission for selecting  and  recommending  appointments  of  teachers including Heads  of Institution.  The College is topless and an unfair  advantage is  being taken  of this  situation  by Jagannath whose credentials to be appointed as Principal are still to  be investigated.  It is  the statutory duty of the Commission to proceed to take effective steps to fill in the post of  Principal of the College. It is imperative that the State  Government  should  direct  the  Commission  to  take necessary steps to fill in the post of Principal of Sri Nath Intermediate College  Garhmalpur Ballia  within three months from today.  Appellant would  be eligible  to apply  for the same. We direct accordingly.      As we find no merit in any of the contentions canvassed on behalf  of appellants,  the appeal fails and is dismissed subject to  the directions in the preceding paragraph but in the circumstances of the case with no order as to costs. P.B.R.                                     Appeal dismissed. 982