Full Judgment Text
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PETITIONER:
OM PRAKASH RANA ETC. ETC.
Vs.
RESPONDENT:
SWARUP SINGH TOMAR & ORS. ETC. ETC.
DATE OF JUDGMENT09/05/1986
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
BHAGWATI, P.N. (CJ)
CITATION:
1986 AIR 1672 1986 SCR (3) 1
1986 SCC (3) 118 1986 SCALE (1)1320
CITATOR INFO :
R 1988 SC 876 (16)
ACT:
U.P. Intermediate Education Act, 1921: Section 16-
G(2)(c) & Regulations 55-62/U.P. Secondary Education
Services Commission & Selection Boards Act, 1982: Section
16(1)(a)
Scope and Effect of s. 16-G(2) (c)- Explained
Vacancy in the post of Principal/Headmaster-Whether can
be filled by process of transfer from one educational
institution to another.
HEADNOTE:
Section 16-G(2)(c) of the U.P. 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 U.P. 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
16(1)(a) 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
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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 v.
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 v. Deputy
Director of Education, (1983 U.P. Local Bodies & Educational
Cases 34) and the Committee of Management, National
Intermediate College Adali Indara, District Azamgarh v. The
District Inspector of Schools, Azamgarh, (1983 U.P. 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.
41)91-92 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 s.16(1)(a)
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 s. 16-
G(2)(c) of the A Education Act, (ii) that the right to apply
for transfer from one institution to another under s. 16-
G(2)(c) 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 s. 16-G(2)(c) 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 s.
16-G(2)(c) of the Education Act continues to be operative.
On the question: Whether in view of the enactment of
the U.P. Secondary Education Services Commission and
Selection Boards Act, 1382, the provisions of s. 16-G(2)(c)
of the U.P. 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.
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Dismissing the appeals and the special leave petition,
the Court
^
HELD: 1.(i) Upon the constitution of a Commission under
the U.P. 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 s. 16-G(2)(c) of the
U.P. Intermediate Education Act, 1921 and its Regulations.
[16 B-C]
Raghunandan Prasad Bhatnagar v. Administrator, Gandhi
Vidyalaya Intermediate College, Khekra, Civil Misc. Writ
Petition No. 10301 of 1983, approved.
Ratan Pal Singh v. Deputy Director of Education, (1983)
U.P. Local Bodies and Educational Cases 34 and the Committee
of Management, National Intermediate College Adali Indara
District Azamgarh v. The District Inspector of Schools
Azamgarh, (1983) U.P. Local Bodies and Educational Cases
198, overruled.
1. (ii) The context in which s. 16-G(2)(c) 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 s. 16-G(2)(c) 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 s. 16-G(2)(c) 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 10(I) requires the management to notify
the vacancy to the Commission. Section 16(1)(a) 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 16(2) declares that
every appointment made in contravention of s. 16(1) 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]
3.(i) The provision to apply for transfer under s. 16-
G(2)(c) 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
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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]
3.(ii) 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 s. 16G(2)(c) 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 s. 16-G(2)(c) 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 s.16(1)(a) 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.
[16E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2072
and 4091-92 of 1985.
From the Judgment and order dated 9.4.1985 of the
Allahabad High Court in C.M.W.P 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 30.4.1985 of the
Allahabad High Court in C.M.W.P Nos 17669, 11027 and 10675
of 1983
S.N. Kacker, R.B Mehrotra, Rajesh, A D. Sanger, Pramod
Dayal, Mrs. S. Dixit and U.S. Prasad for the Appellants
6
G.L. Sanghi, Shanti Bhushan, Madan Lokur, Prasant
Bhushan and A.K. 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 U.P. Secondary
Education Services Commission and Selection Boards Act, 1982
and the Rules framed thereunder, the provisions contained in
s. 16-G(2)(c) of the U.P. 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
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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 U.P. 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 U.P. 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.
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About this time, the appellant Om Prakash Rana, who was
Principal of the B.P. 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 v. 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 v. Deputy Director of
Education, (1983 U.P. Local Bodies and Educational Cases 34)
and the Committee of Management, National Intermediate
College, Adali Indara District Azamgarh v. The District
Inspector of Schools Azamgarh, (1983 U.P. 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
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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
(e)maintenance 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 B.P.
Intermediate College, Bijwara to the Veer Smarak
Intermediate College, Baraut.
In anticipation of the promulgation of the Services
Commission ordinance the U.P 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:
"10(1) 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
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Commission after the notification of a vacancy under s. 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:
"16(1) 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-
section(2) 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. 5,000 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 s. 16-G(2)(c) 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
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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 s. 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 s. 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 s. 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
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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 s. 16(1) mandates that "every
appointment" of a Principal can be made by the Management
"only on the recommendation of the Commission". Section
16(2) goes further. It declares that every appointment made
in contravention of s. 16(1) 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 s. 18(1), 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 s. 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 s. 16-
G(2)(c) 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 s. 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
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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 s. 16(1) of the Services
Commission Act enacts that the provisions of s. 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 s. 16-G(2)(c) 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
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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 s. 16-G(2)(c) 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
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of service under s. 16-G(2)(c) of the Education Act. It is
urged that the making of such amendments indicates the
belief in the State Government that s. 16-G(2)(c) 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
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may have been another thing altogether if an amendment had
been made to s. 16-G(2)(c) 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 s. 16-G(2)(c)
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 s. 16G(2)(c) 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 s. 16(1)(a) 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 s. 16-G(2)(c) 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 s. 16-G(2)(c) 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 U.P. Secondary
Education Services Commission (Removal
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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
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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 (S.L.P.(C) 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.
P.S.S. Appeals and Petition dismissed.
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