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
GL Sanghi RD Upadhaya VK Pandita and section Srinivasan for the Appellants
R K Garg and section 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 MA 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 ManagerPresident of the 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 730 AM 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 UP 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 UP Education Department G O No 1701l5 7 FI 1 2781 dated 1481 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 226 6280 81 dated 1581 Sub In Ref Appointment of Principals
Sir In reference to letter No Sri Nath Inter College dated 2741981 regarding the above mentioned subject it is informed that as soon as GO No 170115 7F 2781 dated 741981 in regard to the prohibition on appointments is received in this office it has been sent by letter No 6081 82 dated 841981 and it has been received by the clerk of your office on 841981 and the message of the GO 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 l51981 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 article 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 UP the Director of Education UP 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 ie 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
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 UP Act No 26 of 1975
For implementing the provisions of the Act sec
3 envisaged the constitution of a Board
7 prescribes the power of the Board which would also imply duties and functions of the Board
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
16 A to sec
16 I were inserted by UP 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 UP 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
16 FI 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
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 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 section 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 andor 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
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 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 section 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 section 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 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
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 UP 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
PBR Appeal dismissed


Summary:
The Committee of Management of a non Government aided school by its resolution dated April 191981 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 11981
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 71981
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  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 94 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