Holding

The Government order under Section 9(4) of the Intermediate Education Act, 1921 was effective upon issuance, rescinding the regulation granting appointment power to the Committee of Management, so the appellant's appointment was ineffective and the appeal was dismissed.

Summary

Ramji Dwivedi was appointed principal of a non‑government aided college after a selection committee chose him on 12 April 1981 and the college management issued an appointment order on 27 April 1981. However, the Uttar Pradesh Government had issued an order on 7 April 1981, under Section 9(4) of the Intermediate Education Act, 1921, stopping all fresh selections and appointments of principals in such institutions. The High Court held the appointment invalid because the management lacked authority to appoint after the Government order. On appeal, the Supreme Court affirmed that the Government order became effective immediately, rescinding the regulation that conferred appointment power on the management, rendering the selection and appointment ineffective. The Court also rejected the contention that Section 16E(10) required a hearing before cancellation, as the appointment itself was beyond the management’s power. Consequently, the appeal was dismissed, and no salary recovery was ordered.

Issues considered

The effect of the Uttar Pradesh Government order dated 7 April 1981 on the power of the Committee of Management to appoint a principal.
Whether the appointment of the appellant was valid, ineffective, or invalid under the Intermediate Education Act, 1921.
Whether Section 16E(10) of the Act required a hearing before the State could cancel the appointment.

Legislation cited

Intermediate Education Act, 1921s. 16E(10), s. 16F, s. 9(4)
U.P. Secondary Education Service Commission and Selection Board Ordinance, 1981

Subjects

appointmentnon-government aided collegestate government orderIntermediate Education ActSection 9(4)selection committeevalidity of appointmentadministrative laweducation lawwrit of mandamus

Judgment

OR. RAMJI DWIVEDI
A
v.
STATE OF U, P. & OTHERS

April 26, 1983
B
[D. A. DESAI AND 0. CHINNAPPA REDDY, JJ.J
Intermediate Education Act, 1921-Section 9(4) and 16E(IO)-Scope of
Selection of Principal of non-Government aided college made on April 12, 1981-

-l By order dated April 7, 1981 State Government stopped all fresh sele£"1ions and
appOiutments-Effect ofGovernn1ents order.
c
The Committee of Management of a non-Government aided school, by
its resolution dated April 19, 1981 appointed the appellant as Principal of the
college run by it. The order was communicated to the appellant on April 27
1981 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 commu-
nicated by radiogram to the various authorities the order of the Gove_rnment D
stopping all fresh selections and appointments of principals in all non·Govern·
ment~aided secondary schools. A copy of it was sent to the college by the
District Inspector of Schools on May 1, 1981.

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 E
dated April 7, 1981.

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. The High Court, dismissing his petition, held that F
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 G
Government had withdrawn that power.

Dismissing the appeal,

. . HELD : . 'fhe order of the Government became effective the moment it H
was issued. The effect of that order was that the Selection Committe had no
right to select the appellant nor did the Committee of Manaaement have any
power to make the appointment. [979 A·B]
SUPREME COURT REPORTS (198312 s.c.R.
The Boa~d constituted under the Act had the power to make regulations
A and this power could be exercised only with the previous sanction ·or the State
Government. Section 9(4) specifically confers power on the State Goverflment
without making any reference to the :Board to make, modify or resci~d any
regulation. This power comprehended the power to stop aU 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-Governn1ent aided schools. The effect of the order was to rescind the
B regulation conferring power on the Committee of Management to make
appointments of Principals. [978 B-G]

There was no 1nerit in the submission that the letter dated May 1. 1981
had not been received by the Management. [979 D]

c 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 and 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
D satisfied that a person had been appointed as Principal in contravention of the
provision's of the Act, it 1nay cancel such appointment after affording him an
opportunity of being heard .has n(J appJication to the present case·bc::cause
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. [980 E-G]

E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1340 of
1982.

Appeal by Special leave from the judgment and Order dated
the I st March, 1982 of the Allahabad High Court in Civil Miscella-
F neous Petition No. 6933 of 1981.

G.L. Sanghi, R.D. Upadhaya, V.K. Pandita and S. Srinivasan
for the Appellants.

R. K. Garg and, S. N. Singh for the Respondent.
G
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
H
residuary power still enjoyed by private _management can be used to
successfully harass a highly qualified teacher is the tragic lesson of
this litigation.
RAMn DWIVEDI v. u .P. (Desai, J.)

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, Garhmalpu'r 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)
B
held the interview on April 12, 1981. The Selection .Committee
consisted of Shri Sudhakar Tiwari Manager/President of the Selec·
tion Committee, Shri Ram Dularey Tripathi, Principal.- Nagrik
Degree College, Jaunpur and Dr. Gauri Shanker Misra, Principal,
Narihsun Degree College, Harihaun Dist!. Jaunpur. The Selection
Committee unanimously selected the appellant for appointment to c
the post of Principal. Pursuarit 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
the College vide its Resolution No. 3 dated April 19, 1981 has
appointed the appellant ·as Principal on one year probation in the
D
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 IO days of
the receipt of the order of appointment failing which the appoint·
ment would be void. On receipt of this letter of appointment the E
appellant presented himself at the College on May I, 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. F
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 G
hours in the teachers' room.

It appears that the State Government was contemplating to
,._ J,, bring about a radical change in the mode, method and power of
appointment of the teachi,ng staff in non-Government aided schools JI
r:i'
,,. a~ aecordin¥lr Secretarr to the Government of U.P. Education.

~-t !

ti:3'.
ii!f'
974 SUPREME COURT REPORTS [1983) 2 s.c.R.

Department issued an order dated April 7, 1981, communicated by a
A radiogram to the various authorities. It reads as under: ,--....,...._
'
' "From Secretary to Government of U.P. Education/
Department G. O. No. 1701/15-7-FI-1 (27)/81 dated
1.4.81
B
Stop all fresh selections and appointments of Princi-
pals 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
c 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
D some dispute between the parties as to whether this copy of the
radiogram was received by the Management of the CoJlege but there
ii a letter dated May I, 1981 addressed by the District Inspector of
Schools, Ballia ta the Manager of Shrinath Intermediate College
which reads as under :

E "Letter No. 2/26-62/80-81 dated 1.5.81 Sub: In
Ref: Appointment of Principah.

Sir,
In reference to letter· No. Sri Nath Inter College
F dated 27.4.1981 regarding the above mentioned subject,
it is informed that as soon as G.O. No. 1701/15-7F-I-l
(27)/81 dated 7.4.1981 in regard to the prohibition on
·appointments is received in this office, it has been sent by
letter No. 60/81-82 dated 8.4.1981 and it has been re-
ceived by the clerk of your office on 8.4.1981 and the
G 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.
H Sd/· B. N. Pandey,
District Inspector of Schools, Ballia,
1.5.1981"
kAMJI DW!VEDI v. u.P. (Desai, J.) 975

__.., Serious dispute arose whether the appellant's appointment as
Principal was valid. The controversy was accentuated by the con· A
duct 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 B
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.
l Pursuant to the interim relief granted by the High Court the appell·
ant was paid his salary. To the Writ Petition filed by the appellant
he had lmpleaded 5 respondents including the State of U.P., the c
.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 Phu! Deo Pandey filed an affidavit in
opposition on behalf of the Committee of Management inter a/ia D
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
E
executive functions suspending or withdrawing power ofappoin,ment
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 F
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.

G
. 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 i.e. May l, 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 H
and the order contained in the radiogram had no effect on the mli·
dity of appointment. It was next contended that assuming such a
power to issue radiogram was available to the State Government,
976 SUPREME COURT Rlll'ORTI! (1983) 2 S.C.R.

if'the appointment was made without the knowledge of the order
A · contained in the radiogram, the appoitmeut would be valid. Alter-
natively, it was contended that in any case once appointment was
made unless the procedure prescribed in sub-sec. 10 of sec. 16-E of
the Act is followed, the appointment of the appellant could. not be
invalidated, and therefore it may be declared tilat the appellant
continues to hold the post of the Principal of the College.
B
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 Uni·
c · versity 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 U.P. Act
No. 26 of 1975. For implementing the provisions of the· Act, sec. 3
D envisaged the constitution of a Board. Sec. 7 prescribes the power
of the Board which would also imply duties and functions of the
Board. ·Sec. 9 preserves ·and protects the powers of the State
Government. Sub-sec. 4 is material and may be extracted :

E "{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 snch order
or take such other action consistent with the provisions
F as
of this Act 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 com·
G mittees. 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.
Sec. 16-A to sec. 16·1 were inserted bX U.P. Act No. 35 of 1958.
II Section 16-A provides for a scheme of administration for every
institution whether recognised before or after the commencement of
U.P. Act No. 35of1958. The Scheme of Administration was to
Inter a/ia provide for constitution of a Committee of Man~ement
I
RAMJ(.IiWIVEDf v: U.P. (Desai, J.)
vested with authority to manage and conduct the affairs of the
Institution. Sec. 16-F(l) provides for setting up a Selection Com- A
mittee 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. Sec. 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 irrter alia requires B
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 appoint-
l ed or retained in service any teaching or non-teaching staff in contra-
• vention of the provisions of the Act or the Regulations . c
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. D
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 select-
ed 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 ro selection had any power
on April 27, 1981 to issue appointment order. It is conceded that
relevant regulations conferred power on ·the Committee of Manage- F
)llent to make appointment upon the recommendation of the Selec-
tion Committee. The power to make appointment is conferred by
the regulations. The Board has the power to make regulations under
sec. J 5 and this power can be exercised only with the previous
sanction of the State Government; Thus the State Government has
G
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. l 6A and the Scheme of
Administration envisages the setting up of a Committee of Manage-
' __.L. ment and the Committee of Management has the power to set up a H
Selection Committee for selecting the candidate for appointment as
Head of an Institution as provided in s~c. 16-F. This power is bein~
regulated by the re!lulations,
978< (1983] 2 S.C.R•

.Thus it becomes clear th\lt the Board enacts regulations. The .
regulatiqns confer power of appointments includiug of the appoint;'
ment ofa Head of the Institution and of the teachers. · · 1
Sub"Sec. 4 of s. 9 which has been extracted hereinbefore confers.
power on the State Government without making any reference to
B' the Board to make an order or take such other action consistent
with the provisions of the Act as it deems necessary and iu parti·
cular, 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· Gover,1ment ·issued an
order dated April 7, 1981 stopping all fre~h selections and appoint·
ments of Principals etc. in all non-government aided schools. Sri
Nath Intermediate College is non-government aided school. The
I) 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 and/or 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)
E is deemed to confer such a power it has to be readin juxtaposition
with the power conferred on the State Government by sub-sections
(!), (2), (3) preceding sub-sec, (4) of sec. 9. The High Court there·
fore 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·
F 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
G 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,
H the power to make appointments was suspended for the time being.
As pointed out earlier, the regulation confers power on the Com·
mittee 9f Mana$ement to· make appointment. Th~ regulation was
RAMJf'.DW!VEDI v.:u.r. (Desai; J.) 979:

enacted by the Board with the prior sanction. of tile. State _GQvern-
ment. The State Government could be said to have rescinded that A
r 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.
B

Mr. Sanghi · further contended that this. order was never
·received by the institution and therefore the power of the Committee
of Management notwith>tanding the .fact that its power to ·make
appointment was suspended remained iµtact 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 lnstitutio11 or any responsible person then in charge of
the management denying the receipt of the letter dated May I, 1981.
This letter shows that on April 8, 1981 the Institution had received
the order that the power of appointment of Principal bas been with-
drawn or suspended. If the order was valid and power to make
appointment was withdrawn or suspended it would not be open to E
the Selection Committee to make and select appellant nor the
Manager on behalf of the C_ommittee 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 appointme_nt and hence ineffective though it may not be
invalid. F

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 Com·
mittee of the Management to make appo\ntmen,\,"
980 SVP&EME COURT REPORTS {1983) 2 s.c.&.
Sub-sec. I0 provides as under :
A
("IO.) 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 contra·
vention of the provisions of this Act, the State Govern·
mentor, as the case may be, the Director may, after
affording an opportunity o[ being heard to such person,
cancel such appointment and pass such consequential .
order as may be necessary."

It was urged that if the Sta~e 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 appoint·
ment and pass such consequential order as may be necessary.
D Mr. Sanghi vehemently contended that if t.he appointment of appel·
!ant is in contravention of the pravisions of the Act, the State
Government was bound to hear the appellant before making any
consequential order. Sub-sec. (10) provides for a contingency where
an appointment is made and the State Government later on comes
E 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. (10). The situation
is that the power of appointment conferred by regulation on Com-
F mittee of Management of all-non-government aided institutions
was withdl'llwn 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 conten·
tian must fail.
G
U ndoubtedJy appellant is a highly qualified person. There
was nothing hanky panky in his appointment. If the power to make
appointment was not suspended we would have no difficulty in
H 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 ma11agement, · at the insta11ce of Shrj
iW.tn DWIVEDI v. u.P. (Desai, J.) 981
Jagannath appears to have subsequently backed out from the appoint·
ment 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 I
the Committee of Management nor the Institution would be entitled
to recover any salary paid to the appellant.

The State Government promulgated the U.P. Secondary Edu·
cation 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 Insti·
tution. The College is topless and an unfair advantage is being
taken of this situation by Jagannath whose credentials to be appoint-
ed as Principal are still to be investigated. It is the statutory duty D
of the Commission to proceed to take effective steps to fill in the
y post of Principal ~f 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
E
wonld 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 t.o costs. F

P.B.R. Appeal dismissed.

G