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

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 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 Department issued an order dated April 7, 1981, communicated by a radiogram to the various authorities. It reads asSecretary to Government of U.P. Education/ Department G. O. No. 1701/l5-7-FI-1 (27)/81 dated 1.4.81Stop 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 instructionsto 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 asNo. 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 off ice, it has been 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,dispute arose whether the appellants 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 Commit tee 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 thisHigh 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.

Reasoning:
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.