Civil Appeal Nos
2072 and 4091 92 of 1985
From the Judgment and order dated 941985 of the Allahabad High Court in CMWP Nos 10301 and 2263 of 1983
with Civil Appeal Nos 2628 2696 of 1985 and Special Leave Petition No 9542 of 1985 From the Judgment and order dated 3041985 of the Allahabad High Court in CMWP Nos 17669 11027 and 10675 of 1983 SN Kacker RB Mehrotra Rajesh A D Sanger Pramod Dayal Mrs section Dixit and US Prasad for the Appellants 6 GL Sanghi Shanti Bhushan Madan Lokur Prasant Bhushan and AK Srivastava for the Respondents
The Judgment of the Court was delivered by PATHAEK J
The principal question in these appeals is whether in view of the enactment of the UP Secondary Education Services Commission and Selection Boards Act 1982 and the Rules framed thereunder the provisions contained in section 16 G2c of the UP Intermediate Education Act 1921 and Regulations 55 to 62 in Chapter III of the Regulations framed under that Act in respect of the transfer of a Principal from one Intermediate College to another continue to be operative and effective
The Intermediate Education Act 1921 shortly referred to as the Education Act  and the Regulations framed thereunder provide inter alia for the conditions of service of Heads and of the teachers of such educational institutions
The appointment of the Heads and of teachers of educational institutions in the State continued to be governed by the Education Act for several years but with the passage of time it came to be felt that the selections of teachers under the provisions of that Act and the Regulations were not always free and fair and moreover the field of selection was greatly restricted
As this adversely affected the availability of suitable teachers and the standards of education the Government of Uttar Pradesh promulgated the UP Secondary Education Services Commission and Selection Boards ordinance 1981 on July 10 1981 with a view to establishing a Secondary Education Services Commission and six or more Secondary Education Selection Boards for the selection of teachers in institutions recognised under the Education Act
The ordinance was replaced subsequently by the enactment of the UP Secondary Education Services Commission and Selection Boards Act 1982 conveniently referred to as the Services Commission Act 
Thereafter the State Government framed Rules for carrying out the purposes of the Act
It was some time before the Services Commission and the Selection Boards could be constituted and therefore a number of Removal of Difficulties orders were made by the State Government pursuant to power conferred under the aforesaid ordinance and thereafter under the Commission Act
We propose to take the appeal filed by Om Prakash Rana against Swarup Singh Tomar Civil Appeal No 2072 of 1985 as representative of the factual context in which the appeals arise
The Veer Smarak 7 Intermediate College is an educational institution in Baraut in the A district of Meerut
It is an institution recognised under the provisions of the Intermediate Education Act 1921
On June 30 1982 the post of Principal of the College fell vacant on the retirement of the outgoing Principal Jai Singh
The Committee of Management resolved that Bhopal Singh the then Principal of the Adarsh Vedic Intermediate College situated in the same district should be invited to join the post of Principal in the College
It was intended that the vacancy should be filled in accordance with the provisions of the Education Act and the Regulations made thereunder which permitted the transfer of a Principal from one institution to another
As the transfer could be affected only with the approval of the District Inspector of Schools an application was made to the District Inspector of Schools
He refused to grant approval
On July 13 1982 the District Inspector of Schools directed the Committee of Management to give charge of the post of Principal to the respondent Swarup Singh Tomar as officiating Principal
Three days later the District Inspector of Schools superseded that order and directed that the respondent Swarup Singh Tomar should be appointed as ad hoc Principal under the Removal of Difficulties order issued under the Services Commission Act
The Committee of Management of the College filed a writ petition in the Allahabad High Court against the order of the District Inspector of Schools and during its pendency the High Court made an interim order in which it was recognised that Swarup Singh Tomar was functioning already as ad hoc Principal of the institution
About this time the appellant Om Prakash Rana who was Principal of the BP Intermediate College at Bijwara in the district of Meerut requested the Committee of Management of his College to relieve him in order to enable his transfer as Principal to the Veer Smarak Intermediate College
On November 22 1982 the Committee of Management passed a resolution accordingly
On December 3 1982 the Committee of Management of the Veer Smarak Intermediate College resolved on accepting the appellant as Principal of the College on transfer from the other institution
On February 19 1983 the District Inspector of Schools accorded his approval to the transfer
Tomar now filed a writ petition in the Allahabad High Court
He obtained an interim order restraining the Committee of Management from permitting Rana to fill the post of Principal of the College but the interim order was vacated on March 9 1983 and Rana has been working as Principal of the College ever since
On April 9 1985 the High Court allowed the writ petition and quashed the order dated February 19 1983 under which the District Inspector of Schools had 8 accorded his approval to the transfer of Rana
In allowing the writ petition the High Court followed the judgment of a Full Bench of the Court pronounced in Raghunandan Prasad Bhatnagar vs Administrator Gandhi Vidyalaya Intermediate College Khekra Civil Misc Writ Petition No 10301 of 1983
That was a case where the High Court re examined the correctness of the views expressed by two Division Benches of the High Court in Ratan Pal Singh vs Deputy Director of Education 1983 UP Local Bodies and Educational Cases 34 and the Committee of Management National Intermediate College Adali Indara District Azamgarh vs The District Inspector of Schools Azamgarh 1983 UP Local Bodies and Educational Cases 198
The three learned Judges who heard the case were unable to come to a unanimous opinion and by majority the Full Bench held that it was not permissible for the Committee of Management of an Intermediate College to fill the post of Principal of the College by the transfer of a Principal from one Intermediate College to another after the commencement of the Services Commission Act
To appreciate the scope and range of the contentions raised before us by the parties it is appropriate to set forth at the outset the relevant provisions of the two statutes and the pertinent Regulations
Section 16 G of the Education Act provides 16 G Conditions of service of Head of Institutions teachers and other employees 1 Every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is inconsistent with the provisions of this Act or with the Regulations shall be void
2 Without prejudice to the generality of the powers conferred by sub section 1 the Regulations may provide for a the period of probation the conditions of confirmation and the procedure and conditions for promotion and punishment including suspension pending or in contemplation of inquiry or during the pendency of investigation inquiry or trial in any criminal case for an offence involving moral turpitude and the emoluments 9 for the period of suspension and termination of service with notice
b the scales of pay and payment of salaries c transfer of service from one recognised institution to another d grant of leave and Provident Fund and other benefits and emaintenance of record of work and service The Regulations SS to 62 detail the procedure to be followed when a permanent employee of an institution desires his transfer to another institution
An application for transfer is made to the Inspector of Schools
All applications for transfer are entered in a register As soon as a substantive vacancy or a temporary vacancy likely to be made permanent and which is to be filled by direct recruitment is advertised the Manager of the institution has to send a copy of the advertisement to the Inspector
The Inspector will arrange with the Management to see whether the vacancy can be filled suitably by one of the applicants for transfer
When the vacancy is not filled by transfer the Management may proceed to fill it by direct recruitment
To enable the transfer to take place it is necessary that the Management of the institution where the application is serving should be willing to release him and that the Management of the institution to which the applicant seeks transfer is willing to accept him
Apparently the appellant Rana relied on these provisions of the Education Act and the Regulations to obtain a transfer as Principal from the BP Intermediate College Bijwara to the Veer Smarak Intermediate College Baraut
In anticipation of the promulgation of the Services Commission ordinance the UP Government issued a radiogram to all District Inspectors in the State directing them to stop all fresh selections and appointments of Principals Head Masters and teachers including recruitment by promotion in all non Government aided Secondary Schools except minority institutions pending further orders 
This was followed on July 19 1981 by the Services Commission ordinance
Clause 16 of the ordinance provided that the appointment of a teacher the expression teacher  being defined to include a Principal could be made by the Management only on the recommendation of the Commission and any appointment made in contravention of the clause would be void
Thereafter the Services Commission Act was enacted 10 Section 3 provides for establishing a Commission to be called the Uttar Pradesh Secondary Education Services Commission
It is to be a body corporate and entitled to exercise power throughout the State
Section 10 provides 101 For the purposes of making appointment of a teacher specified in the Schedule the management shall notify the vancancy to the Commission in such manner and through such officer or authority as may be prescribed
2 The procedure of selection of candidates for appointment to the posts of such teachers shall be such as may be Prescribed Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified under sub section 1
 Section 11 details the procedure to be followed by the Commission after the notification of a vacancy under section 10 for the purpose of holding interviews of the candidates and preparing a panel of those found most suitable for appointment
The names on the panel are to be forwarded to the Management of the institutions in accordance with the prescribed procedure and the Management is to appoint a candidate accordingly
Section 16 declares 161 Notwithstanding anything to the contrary contained in the Intermediate Education Act 1921 or the Regulations made thereunder but subject to the provisions of sections 18 and 33 a every appointment of a teacher specified in the Schedule shall on or after July 10 1981 be made by the management only on the recommendation of the Commission b every appointment of a teacher other than a teacher specified in the Schedule shall on or after July 10 1981 be made by the management only on the recommendation of the Board Provided that in respect of retrenched employees the provisions of section 16 EE of the Intermediate Education Act 1921 shall apply with the modification that in sub section2 of the afore 11 said section for the words six months  the words two years  shall be deemed to have been substituted
2 Every appointment of a teacher in contravention of the provisions of sub section 1 shall be void
 Where a person is entitled to appointment as a teacher in any institution but is not so appointed by the Management he is given the right to apply to the Director of Education Uttar Pradesh for a direction to the Management to appoint him forthwith and to pay him salary from the date specified in the order
Section 22 provides for the imposition of a penalty on any person appointing a teacher in contravention of the provisions of the Act
Such contravention constitutes an offence punishable with imprisonment which may extend to three years or with fine up to Rs 5000 or with both
Section 32 of which much will be said hereafter provides 32
The provisions of the Intermediate Education Act 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act or the rules or regulations made hereunder shall continue to be in force for the purposes of selection appointment promotion dismissal removal termination or reduction in rank of a teacher
 Section 33 enables the State Government to pass orders for a period of two years from the date of commencement of the Act for the purpose of removing difficulties
The central question is whether the enactment of the Services Commission Act results in the repeal of the provisions of section 16 G2c of the Education Act and the Regulations made thereunder
If that is so no transfer to the office of Principal in Intermediate Colleges can be made except if at all in accordance with the provisions of the Services Commission Act
In this connection one point which arises is whether the transfer of a Principal from one College to another constitutes an appointment to the latter
It is the case of the appellants that the power relating to appointments conferred on the Commission under the Services Commission Act does not in any way curtail the provisions regarding transfer set forth in the Education Act and its Regulations
It is urged that the right to apply for transfer is a condition of service of an employee and neither expressly nor by necessary implication can it 12 be said that the Services Commission Act has abrogated that right
It is a facility provided to every employee and it is said there must be clear language before that right can be taken away
It is contended that it is perfectly possible to read the Education Act and its Regulations side by side with the Services Commission Act and infer therefrom that the power of transfer continues to co exist under the former with the power relating to appointments conferred on the Commission under the latter
There is no inconsistency between the two powers it is submitted and that is apparent when section 32 of the Services Commission Act deals with the effect of the inconsistency between the provisions of the Education Act and the Regulations made thereunder and the provisions of the Services Commission Act and its rules and Regulations in regard to the selection appointment promotion dismissal removal termination or reduction in rank of a teacher
This submission is based on the premises that the power of transfer is not encompassed within the power of appointment
So it is said that section 16 of the Services Commission Act which provides that the appointment of a Principal can be made by the Management only on the recommendation of the Commission does not bar the transfer of a Principal from one College to another
As is clear by now the fundamental basis of the contention that the power of transfer under the Education Act and its Regulations continues in force even after the enactment of the Services Commission Act rests on the assumption that the power of appointment does not include the power of transfer
In our opinion the assumption is unsustainable
The scheme under the Education Act envisages the appointment of a Principal in relation to a specific College
The appointment is in relation to that College and to no other
Moreover different Colleges may be owned by different bodies or organisations so that each Principal serves a different employer
Therefore on filling the office of a Principal to a College a new contract of employment with a particular employer comes into existence
There is no State level service to which Principals are appointed
Had that been so it would have been possible to say that when a Principal is transferred from one College to another no fresh appointment is involved
But when a Principal is appointed in respect of a particular College and is thereafter transferred as a Principal of another College it can hardly be doubted that a new appointment comes into existence
Although the process of transfer may be governed by considerations and move through a machinery different from the considerations governing the appointment of a person ab initio as Principal the nature of the trans 13 action is the same namely that of appointment and that is so whether the appointment be through direct recruitment through promotion from the teaching staff of the same institution or by transfer from another institution
It is pointed out that when section 10 of the Services Commission Act requires that for the purposes of the making of an appointment of a teacher the Management must notify the vacancy to the Commission it does not speak of every vacancy and designedly leaves the possibility open of some vacancies being filled by transfer
This submission is also without substance
A survey of the provisions of the Services Commission Act makes it abundantly clear that the entire matter of selecting teachers for recognised institutions is intended to be governed by the Services Commission Act
As the Preamble of the Act itself suggests that is the whole purpose of establishing the Services Commission
Section 3 envisages the Commission as a body corporate an entity of continuing existence manned by persons of eminence and distinction from the judicial services and the educational services and selected academicians with a superior level of teaching experience and armed with a carefully delineated power to select teachers through a detailed procedure intended to select the best
No wonder than that section 161 mandates that every appointment of a Principal can be made by the Management only on the recommendation of the Commission
Section 162 goes further
It declares that every appointment made in contravention of section 161 shall be void
It is only in exceptional cases where the Commission has failed to recommend the name of a suitable candidate for appointment within one year from the date of notification of the vacancy or the post has actually remained vacant for more than two months then under section 181 the Management may appoint by direct recruitment or promotion a teacher on a purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Education Act or the Regulations made thereunder
Section 22 demonstrates how absolute is the ban on appointing a teacher through a procedure outside the provisions of the Services Commission Act for the section provides that any person who appoints a teacher in contravention of the provisions of that Act shall on conviction be punished with imprisonment for a term which may extend to three years or with fine which may extend to Rs 5000 or with both
Any doubt remaining is removed completely by section 32 of the Services Commission Act which permits the provisions of the Education Act and its Regulations to continue in force in so far only as they are not inconsistent with the provisions of the Services Commission 14 Act its Rules and its Regulations in the matter of the selection and appointment among other things of a teacher
We are firmly of opinion that no duality in the source of power is contemplated in the matter of filling the office of Principal of a College
It is not possible to contemplate that transfers can be affected with the approval of the District Inspectors of Schools under the Education Act and its Regulations while appointments other than by transfer can be made upon the recommendation of the Commission
The control over all appointments is exercised by a single source of power namely the Commission under the Services Commission Act
It is no longer possible to invoke section 16 G2c of the Education Act and its Regulations and transfer a Principal from one institution to another
The context in which those provisions operate the authority conferred for that purpose and the conditions subject to which it can be exercised stand completely superseded by the corresponding provisions of the Services Commission Act its Rules and Regulations
That is amply demonstrated by the declaration in section 16 of the Services Commission Act which mandates that the appointment of a Principal shall be made only on the recommendation of the Commission notwithstand ing anything to the contrary contained in the Intermediate Education Act 1921 or the Regulations made thereunder
 The scheme set forth in the Services Commission Act enacts a complete code in the matter of selection of teachers and resort is no longer permissible to the provisions of the Education Act and its Regulations for that purpose
Where the Services Commission Act intended that any provision of the Education Act pertaining to the appointment of a teacher should continue in force it expressly provided for such saving
For example the proviso to section 161 of the Services Commission Act enacts that the provisions of section 16 EE of the Education Act which provide for the absorption of retrenched employees against permanent vacancies shall apply with certain modifications
A submission on behalf of the appellant is that the power to transfer the service of a teacher from one institution to another under section 16 G2c of the Education Act is a condition of service and should not be identified with the power of appointment
We have already explained that in its essential nature the transfer of a teacher from one institution to another implies the cessation of his appointment in the former institution and his appointment to the latter
It will also be noticed that the selection of teachers of the categories mentioned in the Schedule to the Services Commission Act has been considered by 15 the State Legislature of such manifest importance that a high powered A Commission has been envisaged for discharging that function
It is a Commission consisting of persons holding positions of eminence in the Judicial Services or in the State Education Services or with teaching experience as University Professors and College Principals
It is intended that whenever a vacancy arises in the post of a teacher the Commission must be notified of it
In the selection of a teacher the Commission has been charged with the responsibility of inviting talented persons and selecting the best from among them
The selection has to be made in the context of the particular needs and requirements of the College
It is a responsibility of grave magnitude the appointment of the head of an educational institution and therefore most appropriately entrusted to the vision wisdom and experience of a high powered body the Commission
To contemplate that a vacancy can be filled by transfer even subject to the approval of the District Inspector of Schools is to admit the possibility of an appointment which does not measure up to the high standards and norms which the Commission can having regard to its composition and statutes be expected to apply
The Commission as we have mentioned earlier is envisaged as a corporate body constituted for the entire State and in the selection of teachers as Principals and Lecturers of Intermediate Colleges and as Headmasters of High Schools and Trained Graduate Grade teachers of Higher Secondary Schools the categories of teachers detailed in the Schedule it can also be expected to bear in mind the needs and standards of education designed for the entire State
The object of the Services Commission Act would be defeated if vacancies to posts of such responsibility and obvious importance in the field of education can be filled by bypassing the Commission and making appointments by transfer under section 16 G2c of the Education Act
As the Services Commission Act stands today no appointment by such transfer can be envisaged to those vacancies which fall within the responsibilities of the Commission
Our attention has been invited to the circumstance that even after the coming into force of the Services Commission Act the State Government has made amendments to the Regulations under the Education Act relating to the transfer of service under section 16 G2c of the Education Act
It is urged that the making of such amendments indicates the belief in the State Government that section 16 G2c of the Education Act continues to be operative
It is permissible to say we think that the making of those amendments cannot alter the true construction of the scope of the enactments under consideration
It 16 may have been another thing altogether if an amendment had been made to section 16 G2c of the Education Act itself from which an inference may have been possible that the State Legistlature when amending that provision on the basis that it continues in operation has given clear indication thereby that it was never intended that the provisions of the Services Commission Act should supersede section 16 G2c of the Education Act
In view of the aforesaid considerations we hold that upon the constitution of a Commission under the Services Commission Act it is no longer possible for a vacancy in the post of Principal Headmaster or teacher of the categories mentioned in the Schedule to the Services Commission Act to be filled by the process of transfer under section 16G2c of the Education Act and its Regulations
On this point we find ourselves in agreement with the majority opinion of the Full Bench of the High Court in Raghunandan Prasad Bhatnagar supra and are unable to agree with what has been said by the Division Benches of that Court in Ratan Pal Singh supra and The Committee of Management National Intermediate College Adali Indara District Azamgarh supra
As the mandate imposed by section 161a of the Services Commission Act that the appointment of a Principal of an Intermediate College shall on or after July 10 1981 be made only on the recommendation of the Commission and inasmuch as the appointment by transfer of the appellant as Principal of the Veer Smarak Intermediate College took place after that date the appointment of the appellant must be regarded as void
The majority in Raghunandan Prasad Bhatnagar supra has ob served that section 16 G2c of the Education Act should be limited to cases of mutal transfer of services between teachers serving in different institutions
We find it difficult to accept the accuracy of that observation having regard to the view taken by us that section 16 G2c of the Education Act cannot be pressed into service at all now in regard to vacancies intended to be filled on the recommendation of the Commission under the Services Commission Act An attempt was made by the appellant to show that the respondent Tomar is not entitled to continue as Principal of the Veer Smarak Intermediate College and our attention was invited to the provisions of successive UP Secondary Education Services Commission Removal 17 of Difficulties orders
Having regard to the finding that the appellant A can have no claim to the office of Principal of that College on the basis of the transfer affected in his favour we do not think it is open to him to challenge the continuation of the respondent Tomar in that office
Civil Appeal No 2072 of 1985 fails and is liable to be dismissed
Civil Appeal Nos 4091 4092 of 1985 have been filed by the District Inspector of Schools Meerut in support of the claim of Om Prakash Rana and as they raise the same questions as Civil Appeal No 2072 of 1985 filed by Om Prakash Rana learned counsel for the District Inspector of Schools adopts the submissions made by learned counsel for Om Prakash Rana
Civil Appeal Nos
2628 and 2696 of 1985 arise out of substantially similar facts and those appeals will also be governed by the view taken in the appeal preferred by Om Prakash Rana
A Special Leave Petition SLPC No 9542 of 1985 has been filed by Shashi Pal Singh praying for special leave to appeal against the judgment and order of the Allahabad High Court in which the High Court following its view in Raghunandan Prasad Bhatnagar supra has quashed the appointment of the transferee Principal Upon the considerations which have found favour with us the aforementioned appeals and the special leave petition must fail
In the result all these appeals and the special leave petition are dismissed
There is no order as to costs
PSS Appeals and Petition dismissed


Summary:
Section 16 G2c of the UP Intermediate Education Act 1921 and regulations 55 to 62 in Chapter III of the Regulations framed thereunder provided for the transfer of service of Head of Institutions teachers and other employees from one recognised institution to another
The State Government promulgated the UP Secondary Education Services Commission and Selection Boards ordinance on July 10 1981 with a view to establish a Secondary Education Services Commission and Secondary Education Selection Boards for selection of teachers in institutions recognised under the Education Act
The ordinance was subsequently replaced by an Act in 1382 with retrospective effect
Section 161a of that Services Commission Act 1982 provides that notwithstanding anything to the contrary contained in the Intermediate Education Act 1921 or the Regulations made thereunder every appointment of a teacher sepcified in the Schedule thereto shall on or after July 10 1981 be made by the management only on the recommendation of the Commission
However before the Services Commission and the Selection Boards could be constituted the State Government had to make a number of Removal of Difficulties orders pursuant to the powers conferred under the aforesaid ordinance thereafter under the Services Commission Act
The respondent in Civil Appeal No 2072 of 1985 was directed by 2 the District Inspector of Schools to be appointed as an ad hoc Principal of an Intermediate College under the Removal of Difficulties order issued under the Services Commission Act
The Committee of Management of the College which intended to fill the vacancy by transfer of a Principal from some other Intermediate college under the Education Act filed a writ petition in the High Court against that order of the District Inspector of Schools
During the pendency of that petition in an interim order the Court recognised that the respondent was working as an ad hoc Principal of that institution
About this time the appellant a Principal of another Intermediate College sought his release from that college and the Committee of Management through a resolution dated December 3 1982 accepted him as Principal of their college on transfer
The District Inspector of Schools accorded approval to this transfer on February 19 1983
The respondent thereupon filed a writ petition in the High Court against the appointment of the appellant by transfer under the Education Act
The High Court allowed the writ petition of the respondent on April 9 1985 by a majority following the Full Bench decision in Raghunandan Prasad Bhatnagar vs Administrator Gandhi Vidyalaya lntermediate College Khekra Civil Misc
Writ Petition No 10301 of 1983 wherein it had re examined the correctness of the views expressed by the Division Bench in Ratan Pal Singh vs Deputy Director of Education 1983 UP Local Bodies  Educational Cases 34 and the Committee of Management National Intermediate College Adali Indara District Azamgarh vs The District Inspector of Schools Azamgarh 1983 UP Local Bodies  Educational Cases 198 holding that it was not permissible for the Committee of Management of an Intermediate College to fill the post of Principal of the College by transfer of a Principal from another Intermediate College after the commencement of the Services Commission Act
The appellant appealed to this Court
Civil Appeal Nos
4191 92 of 1985 were filed by the District Inspector of Schools in support of the claim of the appellant
Civil Appeal Nos
2628 and 2696 of 1985 and Special Leave Petition No 9542 of 1385 arise out of substantially similar facts
It was contended for the appellants 1 that s161a of the Services Commission Act which provides for the appointment of a Principal by the management only on the recommendation of the Commission did not in any way curtail the provisions regarding transfer of 3 a Principal from one college to another set forth in section 16 G2c of the A Education Act ii that the right to apply for transfer from one institution to another under section 16 G2c of the Education Act was a condition of service of an employee which neither expressly nor by necessary implication could be said to have been abrogated by the Services Commission Act and iii that the power of transfer under section 16 G2c should not be identified with the power of appointment
It was further contended that making of amendments to the Regulations relating to transfer of service under the Education Act by the State Government even after the coming into force of the Services Commission Act indicates that section 16 G2c of the Education Act continues to be operative
On the question Whether in view of the enactment of the UP Secondary Education Services Commission and Selection Boards Act 1382 the provisions of section 16 G2c of the UP Intermediate Education Act 1321 and the Regulations made thereunder in respect of the transfer of a Principal from one Intermediate College to another continues to be operative and effective
Dismissing the appeals and the special leave petition the Court  HELD 1i Upon the constitution of a Commission under the UP Secondary Education Services Commission and Selection Boards Act 1982 it is no longer possible for a vacancy in the post of Principal Headmaster or teacher of the categories mentioned in the Schedule to that Act to be filled by the process of transfer under section 16 G2c of the UP Intermediate Education Act 1921 and its Regulations
16 B C Raghunandan Prasad Bhatnagar vs Administrator Gandhi Vidyalaya Intermediate College Khekra Civil Misc
Writ Petition No 10301 of 1983 approved
Ratan Pal Singh vs Deputy Director of Education 1983 UP Local Bodies and Educational Cases 34 and the Committee of Management National Intermediate College Adali Indara District Azamgarh vs The District Inspector of Schools Azamgarh 1983 UP Local Bodies and Educational Cases 198 overruled
ii The context in which section 16 G2c of the Education Act and its Regulations operated the authority conferred for that purpose and 4 the conditions subject to which it could be exercised stood completely superseded by the corresponding provisions of the Services Commission Act its Rules and Regulations
No duality in the source of power is contemplated
The control over all appointments is exercised by a single source of power namely the Commission under the Services Commission Act
 14 C D iii The accuracy of the observation of the majority in Raghunandan Prasad Bhatnagar s case that section 16 G2c of the Education Act should be limited to cases of mutual transfer of services between teachers serving in different institutions cannot be accepted having regard to the view taken that section 16 G2c cannot be pressed into service in regard to vacancies intended to be filled on the recommendation of the Commission under the Services Commission Act
16 F G 2
The scheme set forth in the Service Commission Act enacts a complete code in the matter of selection of teachers
Section 10I requires the management to notify the vacancy to the Commission
Section 161a mandates that the appointment of a teacher specified in the Schedule to the Act shall be made only on the recommendation of the Commission notwithstanding anything to the contrary contained in the Intermediate Education Act 1921 or the regulations made thereunder
Section 162 declares that every appointment made in contravention of section 161 shall be void
Section 22 provides for punishment for contravention of the provisions of the Act
Section 32 permits the provisions of the Education Act and its Regulations to continue in force in so far only as they are not inconsistent with the provisions of the Services Commission Act its Rules and its Regulations
14E 13B 14D E 13G H 3i The provision to apply for transfer under section 16 G2c of the Education Act could not be said to be a condition of service
The scheme under that Act envisages the appointment of a Principal in relation to a specific college
There is no State level service to which Principals can be appointed
When a Principal is appointed in respect of a particular college and is thereafter transferred as a Principal of another college a new appointment comes into existence
His appointment then is in relation to that college alone and to no other
Different colleges may be owned by different bodies or organisations so that each Principal serves a different employer
Therefore on filling the office of a Principal of a college a new contract of employment with a particular employer comes into existence
12 E G 3ii The power of transfer is encompassed within the power of 5 appointment in as much as in its essential nature the transfer of a teacher from one institution to another implies the cessation of his appointment in the former institution and his appointment to the latter
Although the process of transfer may be governed by considerations different from those for the appointment of a person ab initio as Principal and move through a different machinery the nature of the transaction remains the same namely that of appointment and that is so whether the appointment be through promotion from the teaching staff of the same institution or by transfer from another institution
14 G H 13A 4
The amendments made to the Regulations framed under the Education Act relating to the transfer of service even after the coming into force of the Services Commission Act cannot alter the true construction of the scope of the enactments under consideration
If section 16G2c of the Education Act itself had been amended an inference would have been possible that the State Legislature when amending that provision never intended that the provisions of the Services Commission Act should supersede section 16 G2c of the Education Act
15G H 16A B In the instant case the appointment of the appellant in Civil Appeal No 2072 of 1985 as Principal by transfer having been made after July 10 1981 was governed by the provisions of s161a of the Services Commission Act and was thus void
It is therefore not open to him to challenge the continuation of the respondent in that office