{"id":70165,"date":"1983-04-26T00:00:00","date_gmt":"1983-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-ramji-dwivedi-vs-state-of-u-p-others-on-26-april-1983"},"modified":"2016-08-20T19:49:28","modified_gmt":"2016-08-20T14:19:28","slug":"dr-ramji-dwivedi-vs-state-of-u-p-others-on-26-april-1983","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-ramji-dwivedi-vs-state-of-u-p-others-on-26-april-1983","title":{"rendered":"Dr. Ramji Dwivedi vs State Of U. P. & Others on 26 April, 1983"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dr. Ramji Dwivedi vs State Of U. P. & Others on 26 April, 1983<\/div>\n
Equivalent citations: 1984 AIR 1506, \t\t 1983 SCR (2) 971<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nDR. RAMJI DWIVEDI\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U. P. & OTHERS\n\nDATE OF JUDGMENT26\/04\/1983\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1984 AIR 1506\t\t  1983 SCR  (2) 971\n 1983 SCC  (3)\t52\t  1983 SCALE  (1)474\n\n\nACT:\n     Intermediate  Education   Act,  192l-Section  9(4)\t and\n16E(10)-Scope of  Selection of\tPrincipal of  non-Government\naided college  made on\tApril 12,1981-By  order dated  April\n7,1981 State  Government stopped  all fresh  selections\t and\nappointments- Effect of Governments order.\n\n\n\nHEADNOTE:\n     The Committee  of Management  of a non-Government aided\nschool, by  its resolution dated April 19,1981 appointed the\nappellant as  Principal of  the college run by it. The order\nwas communicated  to the  appellant on\tApril 27 198} and he\nassumed charge\ton May 1, 1981. In the meanwhile on April 7,\n1981 the  Secretary to\tthe Government\tof U.  P.  Education\nDepartment  communicated   by  radiogram   to  the   various\nauthorities the\t order of  the Government stopping all fresh\nselections  and\t appointments  of  principals  in  all\tnon-\nGovernment aided secondary schools. A copy of it was sent to\nthe college  by the  District Inspector\t of Schools  on\t May\n1,1981.\n     Though the appellant continued to function as Principal\nof the\tcollege the  Committee of Management stopped payment\nof his\tsalary on  the ground  that his\t appointment was not\nvalid after  the issue\tof the\tGovernment order dated April\n7,1981.\n     The appellant  filed a  writ petition under Article 226\nof the Constitution praying for a writ of mandamus directing\nthe Committees of Management of the College not to interfere\nwith the  discharge of\this duties  as Principal and also to\npay  him  his  salary.\tT  he  High  Court,  dismissing\t his\npetition, held that the appellant's appointment as Principal\nof  the\t college  was  invalid\tin  that  the  Committee  of\nManagement had\tno power  to set  up the Selection Committee\nnor had\t the Selection\tCommittee  the\tpower  to  make\t any\nappointment.\n     In appeal\tto this\t Court it was contended on behalf of\nthe appellant  that  on\t the  date  of\this  appointment  as\nPrincipal the  Committee of Management had the power to make\nthe appointment notwithstanding the fact that the Government\nhad withdrawn that power.\n     Dismissing the appeal,\n^\n     HELD: The\torder of the Government became effective the\nmoment it  was issued. The effect of that order was that the\nSelection Committee had no right to select the appellant nor\ndid the\t Committee of  Management have any power to make the\nappointment. [1979 A-B]\n972\n     The Board\tconstituted under  the Act  had the power to\nmake regulations and this power could be exercised only with\nthe previous  sanction of the State Government. Section 9(4)\nspecifically confers  power on\tthe State Government without\nmaking any reference to the Board to make, modify or rescind\nany regulation.\t This power comprehend the power to stop all\nappointments for the time being. Exercising power under this\nsection the  State Government  issued  orders  stopping\t all\nfresh selections  and appointments of Principals in all non-\nGovernment aided  schools. The\teffect of  the order  was to\nrescind the  regulation conferring power on the Committee of\nManagement to make appointments of Principals. [978 B-G]\n     There was\tno merit  in the  submission that the letter\ndated May  1, 1981  had not been received by the Management.\n[979 D]\n     If\t the   order  was   valid  and\tpower  to  make\t the\nappointment was\t with drawn  or suspended,  it would  not be\nopen to\t the Selection\tCommittee to select the appellant an\nissue the  order of  appointment to  him. The appointment in\nthat event  would be by a body not authorised to make it and\nso it was in effective though not invalid. [979 E-F]\n     Section  16E   (10)  which\t  provides  that  where\t the\ncompetent authority  was satisfied  that a  person had\tbeen\nappointed as Principal in contravention of the provisions of\nthe Act,  it may cancel such appointment after affording him\nan opportunity\tof being  heard has  no application  to\t the\npresent case  because power  of appointment conferred by the\nregulation on  the Committee  of Management was withdrawn or\nsuspended and  therefore the  Committee had no power to make\nthe appointment. 1980 E-Gl\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1340 of
\n1982.\n<\/p>\n
     Appeal by\tSpecial leave  from the\t judgment and  order
\ndated the  1st March,  1982 of\tthe Allahabad  High Court in
\nCivil Miscellaneous Petition No. 6933 of 1981.\n<\/p>\n
     G.L.  Sanghi,   R.D.  Upadhaya,  V.K.  Pandita  and  S.
\nSrinivasan for the Appellants.\n<\/p>\n
     R. K Garg and S. N. Singh for the Respondent.
\n     The Judgment of the Court was delivered
\n     DESAI, J.\tEven with  an ever-widening  control of\t the
\nState on the private management of educational institutions,
\nthe  minimal   residuary  power\t still\tenjoyed\t by  private
\nmanagement can\tbe used\t to  successfully  harass  a  highly
\nqualified teacher is the tragic lesson of this litigation.\n<\/p>\n
973<\/span><\/p>\n
     Appellant,\t a  double  M.A.  and  holding\ta  Doctorate
\napplied in  response to\t an advertisement  that appeared  in
\nHindi Daily  Bhirgu A Chetna and Dainik Jagran dated May 18,
\n1980 for  the post  of a  principal of Shrinath Intermediate
\nCollege, Garhmalpur  Sahulie, Distt.  Balia  (‘College’\t for
\nshort) issued by the Committee of Management of the College.
\nThe Selection  Committee as  envisaged by  sec. 16F  of\t the
\nIntermediate Education\tAct, 1921 (‘Act’ for short) held the
\ninterview  on\tApril  12,  1981.  The\tSelection  Committee
\nconsisted of  Shri Sudhakar  Tiwari Manager\/President of the
\nSelection Committee,  Shri Ram\tDularey Tripathi,  Principal
\nNagrik Degree  College, Jaunpur and Dr. Gauri Shanker Misra,
\nPrincipal, Narihsun Degree College, Harihaun Distt. Jaunpur.
\nThe Selection  Committee unanimously  selected the appellant
\nfor appointment\t to the\t post of Principal. Pursuant to this
\ndecision of  the Selection  Committee, the  Manager  of\t the
\nCommittee of Management of the College issued an appointment
\norder dated  April 27,\t1981 to\t the appellant informing him
\nthat the  Committee of\tManagement of  the College  vide its
\nResolution No.\t3 dated\t April 19,  1981 has  appointed\t the
\nappellant as Principal on one year probation in the scale of
\n550-1200 at  initial pay  alongwith DA\tadmissible under the
\nrules. The  appellant was required to present himself before
\nthe Manager  of the  College and take over the charge within
\n10 days\t of the\t receipt of the order of appointment failing
\nwhich the  appointment would  be void.\tOn receipt  of\tthis
\nletter of appointment the appellant presented himself at the
\nCollege on  May 1,  1981 and  requested the Manager to hand-
\nover charge  to him.  There is\tan  endorsement\t below\tthis
\ncommunication  by   the\t Manager   that\t the  appellant\t was
\npermitted to  take charge.  On the  same day,  the appellant
\nwrote to the Manager of the College that as permitted by him
\nhe has\tassumed charge of the post of Principal at 7.30 A.M.
\nand has\t started functioning.  An intimation of the same was
\nalso sent  to the  Distt. Inspector  of Schools, Ballia. The
\nappellant on  the same\tday circulated a notice to the staff
\nintimating to them that he has assumed charge of the post of
\nPrincipal and he has convened an urgent meeting of the staff
\nto be  held on\tthe same  day after  college  hours  in\t the
\nteachers’ room.\n<\/p>\n
     It appears\t that the State Government was contemplating
\nto bring  about a  radical change  in the  mode, method\t and
\npower of appointment of the teaching staff in non-government
\naided schools and accordingly Secretary to the Government of
\nU.P. Education
\n974<\/span>
\nDepartment issued an order dated April 7, 1981, communicated
\nby a  radiogram to  the various\t authorities.  It  reads  as
\nunder:\n<\/p>\n
\t  “From Secretary  to Government  of U.P. Education\/
\n     Department\t G.  O.\t No.  1701\/l5-7-FI-1  (27)\/81  dated
\n     1.4.81
\n\t  Stop all  fresh  selections  and  appointments  of
\n     Principals\t  Headmasters\t and   teachers\t   including
\n     recruitment by  promotion in  all non-government  aided
\n     secondary schools\texcept minority institutions pending
\n     further orders(.)\tDistrict Inspectors  to ensure\tnon-
\n     drawal of\tpay of\tteachers appointed after his date(.)
\n     Detailed instructions follow(.)”<\/p><\/blockquote>\n
     Pursuant to the receipt of this radiogram, the District
\nInspector of  Schools, Ballia  had sent\t a copy of it to the
\nCollege. There\tis some\t dispute between  the parties  as to
\nwhether this  copy of  the radiogram  was  received  by\t the
\nManagement of the College but there is a letter dated May 1,
\n1981 addressed\tby the District Inspector of Schools, Ballia
\nto the\tManager of Shrinath Intermediate College which reads
\nas under:\n<\/p>\n
\t  “Letter. No.\t2\/26-62\/80-81 dated  1.5.81 Sub:  In
\n     Ref: Appointment of Principals.\n<\/p>\n
Sir,
\n\t  In reference\tto letter No. Sri Nath Inter College
\n     dated 27.4.1981  regarding the above mentioned subject,
\n     it is  informed that  as soon  as G.O.  No.  1701\/15-7F
\n     (27)\/81 dated  7.4.1981 in regard to the prohibition on
\n     appointments is  received in  this office,\t it has been
\n     sent by  letter No.  60\/81-82 dated 8.4.1981 and it has
\n     been received  by the  clerk of your office on 8.4.1981
\n     and the  message of  the G.O.  have been  sent  to\t the
\n     experts by telegram.\n<\/p>\n
\t  Hence in  such a situation there is no question of
\nappointment on the post of Principal.\n<\/p>\n
\t\t\t      Sd\/-     B.     N.     Pandey,\n\t\t    District Inspector\tof Schools,  Ballia,\n\t\t\t\t   l.5.1981\n975<\/span>\n<\/pre>\n
     Serious   dispute\t arose\t whether   the\t appellant’s
\nappointment as\tPrincipal was  valid.  The  controversy\t was
\naccentuated-  by  the  conduct\tof  one\t Jagannath  who\t was
\naspiring to be the Principal and who, it is alleged has some
\nlocal influence.  The management  did not  pay any salary to
\nthe appellant  though he  functioned as\t the  Principal\t and
\nultimately the\tappellant approached  the High\tCourt  under
\nArt. 226  of the Constitution praying for a writ of mandamus
\ndirecting the 5th respondent, the Committee of Management of
\nthe College, not to interfere with the work of the appellant
\ndischarging his\t duties as Principal of the College and also
\nto pay salary. Pursuant to the interim relief granted by the
\nHigh Court  the appellant  was paid  his salary. To the Writ
\nPetition  filed\t  by  the   appellant  he  had\timpleaded  5
\nrespondents including  the State  of U.P.,  the Director  of
\nEducation, U.P, the Deputy Director of Education, VI-Region,
\nVaranasi, District  Inspector of  Schools,  Ballia  and\t the
\nCommittee of the Management of the College. The petition was
\nprimarily contested  by the 5th respondent, the Committee of
\nManagement. One\t Shri Phul  Deo Pandey filed an affidavit in
\nopposition on  behalf of  the Committee\t of Management inter
\nalia contending\t that the  appointment of  the appellant was
\nnot valid as the power to appoint was withdrawn by the State
\nGovernment. Reliance  was placed  on the  radiogram in\tthis
\nbehalf.\n<\/p>\n
     The High  Court held  that the radiogram dated April 7,
\n1981 contained an order of the State Government in discharge
\nof its\texecutive functions  suspending or withdrawing power
\nof appointment\tof teaching  staff including  Principal\t and
\ntherefore the  Committee of Management of the College had no
\npower to  set up  a selection  committee nor  the  selection
\ncommittee  had\t any  power  to\t make  any  appointment\t and
\ntherefore the  appointment of  the appellant alleged to have
\nbeen made  on May  1, 1981  was not  valid. The\t High  Court
\naccordingly dismissed  the Writ\t Petition. Hence this appeal
\nby special leave.\n<\/p>\n
     Mr. G.  L. Sanghi, learned counsel who appeared for the
\nappellant canvassed  two contentions  at the hearing of this
\nappeal.\n<\/p>\n
     It was  urged that\t the day  i.e. May  1, 1981 on which
\nappointment of\tappellant  was\tmade  as  Principal  of\t the
\nCollege, the  Committee of  Management had the power to make
\nthe necessary  appointment and\tthe order  contained in\t the
\nradiogram had  no effect  on the validity of appointment. It
\nwas next  contended that  assuming such\t a  power  to  issue
\nradiogram was available to the State Government,
\n976<\/span>
\nif the\tappointment was\t made without  the knowledge  of the
\norder contained\t in the\t radiogram, the appointment would be
\nvalid. Alternatively, it was contended that in any case once
\nappointment was\t mad unless the procedure prescribed in sub-
\nsec.  10   of  sec.  16-F.  Of\tthe  Act  is  followed,\t the
\nappointment of\tthe appellant  could not be invalidated, and
\ntherefore it may be declared that the appellant continues to
\nhold the post of the Principal of the College.\n<\/p>\n
     Before  we\t  deal\twith   these  submissions,  a  brief
\nreference to  the relevant  provisions of  the Act  would be
\nadvantageous. The  Act is  a pre-Constitution Act enacted in
\n1921 with  a view to acquiring power to establish a Board to
\ntake the place of the Allahabad University in regulating and
\nsupervising the\t system\t of  High  School  and\tIntermediate
\nEducation of  the United  Provinces. It\t was more or less an
\ninnocuous enactment.  The power\t and  authority\t enjoyed  by
\nprivate managements  of educational  institutions  was\tleft
\nuntouched. But\tthere was  a comprehensive  amendment of the
\nAct by\tU.P. Act  No.  26  of  1975.  For  implementing\t the
\nprovisions of  the Act, sec. 3 envisaged the constitution of
\na Board.  Sec. 7  prescribes the  power of  the Board  which
\nwould also  imply duties  and functions of the Board. Sec. 9
\npreserves and  protects the  powers of the State Government.
\nSub-sec. 4 is material and may be extracted:\n<\/p>\n
\t  “(4) Whenever, in the opinion of the State Govern-
\n     ment, it  is necessary  or expedient  to take immediate
\n     action, it\t may, without  making any  reference to\t the
\n     Board under  the foregoing\t provisions, pass such order
\n     or\t take\tsuch  other   action  consistent   with\t the
\n     provisions of  this Act  as it  deems necessary, and in
\n     particular, may by such order modify or rescind or make
\n     any regulation  in respect\t of  any  matter  and  shall
\n     forthwith inform the Board accordingly.”<\/p><\/blockquote>\n
     Section 13\t confers  power\t on  the  Board\t to  appoint
\nvarious committees. Section 15 confers power on the Board to
\nmake regulations  with the  previous sanction  of the  State
\nGovernment (see\t sec. 16)  for the  purpose of carrying into
\neffect the  provisions of  the Act.  Sec. 16-A\tto sec. 16-I
\nwere inserted  by U.P.\tAct No.\t 35 of\t1958.  Section\t16-A
\nprovides  for\ta  scheme   of\tadministration\t for   every
\ninstitution  whether   recognised  before   or\t after\t the
\ncommencement of\t U.P. Act  No. 35  of 1958.  The  Scheme  of
\nAdministration was to inter alia provide for constitution of
\na Committee of Management
\n977<\/span>
\nvested with  authority to  manage and conduct the affairs of
\nthe Institution.  Sec. 16-F(I)\tprovides for  setting  up  a
\nSelection  Committee   for  appointment\t  of  Head   of\t  an
\nInstitution and\t sub-sec. 2  provides for  setting up  of  a
\nCommittee for  selection of  candidates for  appointment  as
\nteacher.  Sec.\t 16-D  confers\tpower  on  the\tDirector  of
\nEducation to  cause inspection\tof recognised institution to
\nbe made\t from time  to time  and sub-clause  2 to sub-sec. 3
\ninter alia  requires ascertaining  in course  of  inspection
\nwhether the  Committee of  Management has  failed to appoint
\nteaching  staff\t  possessing  such   qualifications  as\t are
\nnecessary for  the purpose  of ensuring\t the  management  of
\nacademic standards  in the  Institution or  has appointed or
\nretained in  service any  teaching or  non-teaching staff in
\ncontravention  of   the\t provisions   of  the\tAct  or\t the
\nRegulations.\n<\/p>\n
     Having browsed  through the  relevant provisions let us
\nturn to the contentions raised by Mr. Sanghi.\n<\/p>\n
     The contention  which was put in the forefront was that
\nthe date  on which appellant was appointed as Principal, the
\nCommittee of  Management had  the power\t to make appointment
\nnotwithstanding the  fact that\tthe order  contained in\t the
\nradiogram  had\tsuspended  or  withdrawn  its  power.  While
\nsetting out the chronology of events leading to the petition
\nwe have\t pointed out  that at the meeting of E the Selection
\nCommittee held on April 12, 1981 appellant was selected as a
\nPrincipal. The\tquestion is  whether the Selection Committee
\nhad any\t power to  make the  selection on April 12, 1981 and
\nwhether the  Committee of  Management pursuant\tor selection
\nhad any\t power on April 27, 1981 to issue appointment order.
\nIt is conceded that relevant regulations  conferred power on
\nthe Committee  of management  to make  appointment upon\t the
\nrecommendation of the Selection Committee. The power to make
\nappointment is\tconferred by  the regulations. The Board has
\nthe power  to make  regulations under sec. IS and this power
\ncan be\texercised only\twith the  previous sanction  of\t the
\nState Government; Thus the State Government has authority to
\nsanction or  not to  sanction the regulation proposed by the
\nBoard. Every  such recognised institution must have a Scheme
\nof Administration as envisaged by sec. 16A and the Scheme of
\nAdministration envisages  the setting  up of  a Committee of
\nManagement and\tthe Committee of Management has the power to
\nset up a Selection Committee for selecting the candidate for
\nappointment as Head of an Institution as provided in sec 16-
\nF. This power is being regulated by the regulations,
\n978<\/span>
\nThus it becomes clear that the Board enacts regulations. The
\nregulations confer  power of  appointments including  of the
\nappointment  of\t a  Head  of  the  Institution\tand  of\t the
\nteachers.\n<\/p>\n
     Sub-sec.  4   of  s.   9  which   has  been   extracted
\nhereinbefore confers  power on\tthe State Government without
\nmaking any  reference to  the Board to make an order or take
\nsuch other  action consistent with the provisions of the Act
\nas it  deems necessary\tand in particular, may by such order
\nmodify or  rescind or  make any regulation in respect of any
\nmatter. It  would thus\tunquestionably transpire  that while
\nenacting  the\tregulations  prior  sanction  of  the  State
\nGovernment is  necessary and  under sub-section\t 4 of sec. 9
\nthe State  Government enjoys  the power\t to make,  modify or
\nrescind any  regulation. Armed\twith this  power  the  State
\nGovernment issued  an order dated April 7, 1981 stopping all
\nfresh selections  and appointments of Principals etc. in all
\nnon-government aided  schools. Sri Nath Intermediate College
\nis non-government  aided school.  The effect  of  the  order
\nconveyed by the radiogram would be to rescind the regulation
\nconferring power  on the  Committee of\tManagement  to\tmake
\nappointment  and  withdrawing  and\/or  suspending  power  of
\nappointment of\tPrincipal and  teachers. The issuance of the
\norder is  not in  dispute. The\targument, in the High Court,
\nwas that  the State  Government had  no such  power and that
\neven if\t sub-sec (4) is deemed to confer such a power it has
\nto be  reading just  a position\t with the power conferred on
\nthe State Government by sub-sections (1), (2), (3) preceding
\nsub-sec. (4)  of sec.  9. The  High Court  therefore had  to
\nexamine the  width and\tambit of  the executive power of the
\nState Government  in exercise of which according to the High
\nCourt, the  order contained  in the radiogram was issued. We
\nneed not  go that  far because\tin our\topinion sub-sec. (4)
\nspecifically confers  power on\tthe State Government without
\nmaking any reference to the Board to make, modify or rescind
\nany regulation as also make such other order consistent with
\nthe provisions of the Act. This power of wide amplitude will
\ncomprehend the\tpower to  stop all appointments for the time
\nbeing. And  the power  appears to  have\t been  exercised  as
\nGovernment  was\t contemplating\ttaking\taway  the  power  of
\nprivate management  of non-government  aided schools to make
\nappointment of\tteachers including  Principals. In  order to
\navoid  forestalling   of  governmental\t action\t by  private
\nmanagements, the  power to  make appointments  was suspended
\nfor the\t time being.  As pointed out earlier, the regulation
\nconfers\t power\ton  the\t Committee  of\tManagement  to\tmake
\nappointment. The regulation was
\n979<\/span>
\nenacted by  the Board  with the\t prior sanction of the State
\nGovernment. The\t State Government  could  be  said  to\thave
\nrescinded that\tA regulation conferring power of appointment
\nor at  any rate suspend the power conferred on the Committee
\nof  Management\t to  make   appointment.  The  order  became
\neffective the  moment it is issued. The effect of this order
\nis that\t the Selection\tCommittee had no right to select the
\nappellant nor  the Committee  of Management had any power to
\nmake the appointment.\n<\/p>\n
     Mr. Sanghi\t further contended that this order was never
\nreceived by  the institution  and therefore the power of the
\nCommittee of  Management notwithstanding  the fact  that its
\npower to  make appointment was suspended remained intact and
\ntherefore the  appointment of  the appellant would be valid:
\nThere is no merit in the submission because the letter dated
\nMay 1,\t1981 which  has been  extracted hereinafter  clearly
\nshows that  on April  7, 1981  the order  contained  in\t the
\nradiogram  was\t communicated  to   the\t  Manager   of\t the
\nInstitution. There is no affidavit in opposition of the then
\nManager of  Institution or  any responsible  person then  in
\ncharge of  the management  denying the receipt of the letter
\ndated May  1, 1981.  This letter shows that on April 8, 1981
\nthe Institution\t had received  the order  that the  power of
\nappointment of Principal has been withdrawn or suspended. If
\nthe order  was valid  and  power  to  make  appointment\t was
\nwithdrawn or suspended it would not be open to the Selection
\nCommittee to  make and\tselect appellant  nor the Manager on
\nbehalf of  the Committee of Management can issue appointment
\norder  dated  April  27,  1981\tto  the\t appellant  and\t the
\nappointment  of\t the  appellant\t would\tbe  by\ta  body\t not
\nauthorised to  make the\t appointment and  hence\t ineffective
\nthough it may not be invalid.\n<\/p>\n
     In view  of the  finding that  sub-sec. (4) of s. 9 did
\nconfer power  on the  State Government\tto make,  modify  or
\nrescind the  regulation or  make any  other order consistent
\nwith the provisions of the Act, the second contention of Mr.
\nSanghi is equally bound to fail.\n<\/p>\n
     It is  therefore necessary\t to turn  to the alternative
\ncontention based  on sub-sec.  (10) of s. 16-E. The marginal
\nnote of sec. 16-E reads:\n<\/p>\n
\t  “Procedure for  selection of\tteachers and head of
\n     institutions.  Sub-sec.   (I)  confers   power  on\t the
\n     Committee of the Management to make appointment.”\n<\/p><\/blockquote>\n
980<\/span><\/p>\n
     Sub-sec. 10 provides as under:\n<\/p><\/blockquote>\n
\t  (“10.) Where the State Government., in case of the
\n     appointment of  Head of Institution and the Director in
\n     the  case\t of  the   appointment\tof   teacher  of  an
\n     institution is  satisfied\tthat  any  person  has\tbeen
\n     appointed as  Head of  Institution or  teacher, as\t the
\n     case may be, in contravention of the provisions of this
\n     Act, the  State Government\t or, as the case may be, the
\n     Director may,  after affording  an opportunity of being
\n     heard to  such person, cancel such appointment and pass
\n     such consequential order as may be necessary.”<\/p><\/blockquote>\n
     It was  urged that if the State Government is satisfied
\nthat any person has been appointed as head of an Institution
\nin contravention  of the  provisions of\t the Act,  the State
\nGovernment after  affording an opportunity of being heard to
\nsuch  person   cancel  such   appointment  and\t pass\tsuch
\nconsequential  order   as  may\t be  necessary.\t Mr.  Sanghi
\nvehemently contended that if the appointment of appellant is
\nin contravention  of the  provisions of\t the Act,  the State
\nGovernment was bound to hear the appellant before making any
\nconsequential  order.\tSub-sec.  (I   O)  provides   for  a
\ncontingency where  an appointment  is  made  and  the  State
\nGovernment later  on comes  to know that the appointment has
\nbeen made  in contravention  of the  Act  in  respect  of  a
\nparticular individual  that the\t rules\tof  natural  justice
\nrequire that he may be heard before making an order, adverse
\nto such\t person. The  present case  is not  one which can be
\ndealt with  or was  required to\t be dealt  with by  sub-sec.
\n(10).  The  situation  is  that\t the  power  of\t appointment
\nconferred by  regulation on  Committee of Management of all-
\nnon-government\t aided\t institutions\twas   withdrawn\t  or
\nsuspended. The\tCommittee of Management had no power to make
\nthe appointment.  It cannot be said that the appointment was
\nin contravention of any provision of the Act. Therefore sub-
\nsec. (10)  is not  attracted in this case and the contention
\nmust fail.\n<\/p>\n
     Undoubtedly appellant  is a  highly  qualified  person.
\nThere was  nothing hanky  panky in  his appointment.  If the
\npower to  make appointment  was riot suspended we would have
\nno difficulty  in upholding the appointment of the appellant
\nand we\tare  not  oblivious  to\t the  machinations  of\tShri
\nJagannath, who\tpossibly thought that the appellant would be
\na formidable  rival and\t wanted him  to be  out of  way. The
\nprivate management, at the instance of Shri
\n981<\/span>
\nJagannath appears  to have  subsequently backed out from the
\nappointment of\tthe appellant  which at\t one stage they were
\nwilling to defend. But as there was no power of appointment,
\nwe are\tunable to help the appellant. However, we would like
\nto make\t it very  clear that  the appointment  was otherwise
\nvalid, though  ineffective and if appellant under the orders
\nof the\tHigh Court  functioned as  Principal, discharged his
\nduties and  was paid, no question of recovery of amount paid
\nto him\tcould arise  and  neither  the\tGovernment  nor\t the
\nCommittee  of\tManagement  nor\t the  Institution  would  be
\nentitled to recover any salary paid to the appellant.\n<\/p>\n
     The State\tGovernment promulgated\tthe  U.P.  Secondary
\nEducation Service  Commission and Selection Board ordinance,
\n1981 (8\t of 1981)  which was replaced by the act bearing the
\nidentical name. The Act envisages setting up of a Commission
\nfor selecting  and  recommending  appointments\tof  teachers
\nincluding Heads\t of Institution.  The College is topless and
\nan unfair  advantage is\t being taken  of this  situation  by
\nJagannath whose credentials to be appointed as Principal are
\nstill to  be investigated.  It is  the statutory duty of the
\nCommission to proceed to take effective steps to fill in the
\npost of\t Principal of the College. It is imperative that the
\nState  Government  should  direct  the\tCommission  to\ttake
\nnecessary steps to fill in the post of Principal of Sri Nath
\nIntermediate College  Garhmalpur Ballia\t within three months
\nfrom today.  Appellant would  be eligible  to apply  for the
\nsame. We direct accordingly.\n<\/p>\n
     As we find no merit in any of the contentions canvassed
\non behalf  of appellants,  the appeal fails and is dismissed
\nsubject to  the directions in the preceding paragraph but in
\nthe circumstances of the case with no order as to costs.\n<\/p>\n
P.B.R.\t\t\t\t\t   Appeal dismissed.\n982<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dr. Ramji Dwivedi vs State Of U. P. & Others on 26 April, 1983 Equivalent citations: 1984 AIR 1506, 1983 SCR (2) 971 Author: D Desai Bench: Desai, D.A. 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-70165","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDr. Ramji Dwivedi vs State Of U. 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