Case: Dr. Ramji Dwivedi Vs. State of Uttar Pradesh and Others

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 va lid: 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shows that on April 8, 1981 the Institution ha d received the order that the power of appointment of Principal has been withdrawn or suspended. If the order was valid and power to make appointment was withdrawn or suspended it would not be open to the Selection Committee to make and select appellant nor the Manager on behalf of the Committee of Management can issue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.7. 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."Sub-sec. 10 provides as under:("10.) Where the State Government., in case of the appointment o f 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."8. 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 de alt 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 pow er 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 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.9. 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. W

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The present case is not one which can be dealt with or was required to be de alt 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 pow er 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 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 theState 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.