Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Prakash Padia,J.
(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.) On 24th May, 2016 a Division Bench of this Court has referred this matter to the larger Bench as it doubted the correctness of the judgment of a Coordinate Bench passed in Special Appeal No. 476 of 2014 (C/M Shri Maharshi Balmeek Inter College v. Rajesh Kumar Singh and others)1. The Division Bench has formulated the following question for reference:
"(i) As to whether with the aid of Section 32 of U.P. Act No.II of 1921 after enforcement of provisions of U.P. Act No.V of 1982, the authority of State Government/ Director of Education under Section 16-E (10) of Act 1921 still remains intact in the matter of cancelling appointment made on the recommendation of U.P. Secondary Education Selection Board."
For better appreciation of the question, it becomes necessary to state few facts.
The writ petitioner (the first respondent herein), Jay Jay Ram Upadhyay, was initially appointed in 1997 as an Assistant Teacher in I.R. Inter College, Sandila, Hardoi. In 2008 the Uttar Pradesh Secondary Education Services Selection Board2 issued an advertisement inviting applications for appointment on the posts of Principal and Headmaster in different institutions in the State. The writ-petitioner was selected by the Board and was appointed as a Headmaster in Santosh Kumar Inter College, Behandar Kalan, Hardoi, a recognized and aided institution.
Later, on his application, the writ petitioner was transferred on 16th December, 2011 from Santosh Kumar Inter College, Behandar Kalan, Hardoi to Railway Higher Secondary School, Jail Road, Charbag, Lucknow. The appellant herein, Maiku Lal Sen, has been working in Railway Higher Secondary School as an Assistant Teacher. On the basis of some information gathered by him under the provisions of the Right to Information Act, 2005, he made a complaint to the Director of Education (Secondary)3 that the writ petitioner has secured his selection/appointment on the basis of fabricated and forged documents, hence his appointment be cancelled. The Director of Education exercising his power under Section 16-E(10) of the Uttar Pradesh Intermediate Education Act, 19214 issued a communication dated 10th February, 2016 to the Regional Joint Director of Education, Lucknow and the District Inspector of Schools, Lucknow referring the complaint made by the appellant, Maiku Lal Sen, directing them to prepare a draft show cause notice and parawise comments of the complaint made by Maiku Lal Sen. A copy of the said communication was not addressed to the writ petitioner as it was an intra-departmental communication to collect the necessary facts before issuing a show cause notice to the writ petitioner.
At this juncture the writ petitioner invoked the jurisdiction of this Court under Article 226 of the Constitution. Before the learned Single Judge it was contended on behalf of the writ petitioner that the Director of Education does not have any jurisdiction under Section 16-E(10) of the Act, 1921 as the Board is the selecting authority and under the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 (U.P. Act No. 5 of 1982)5 the procedure is provided for taking action against the Principal/ Headmaster or teacher (the definition of teacher includes Principal, we shall refer for short "teacher") of the institution and hence the Director has no authority to take action against the regularly selected Principal recommended by the Board.
It was next contended that Section 21 of the Act, 1982 will have overriding effect over Section 16-E(10) of the Act, 1921 and hence the notice issued by the Director is without jurisdiction. The writ petitioner relied on a judgment of a Division Bench of this Court in the case of C/M Shri Maharshi Balmeek Inter College (supra).
The learned Single Judge set aside the communication dated 10th February, 2016 issued by the Director of Education (Secondary). In the special appeal the Division Bench has doubted the correctness of the judgment of the Coordinate Bench in C/M Shri Maharshi Balmeek Inter College (supra). Hence, this reference.
We have heard Sri Indra Raj Singh and Sri Adarsh Singh, learned counsel for the appellant in the special appeal, Sri R.C. Dwivedi, learned counsel for the respondent-writ petitioner, and Sri Vivek Rai, learned Additional Chief Standing Counsel.
Learned counsel for the appellant Sri Indra Raj Singh submits that there is no inconsistency between Section 21 of the Act, 1982 and Section 16-E(10) of the Act, 1921, therefore, the question of overriding effect of Section 21 over Section 16-E(10) of the Act, 1921 does not arise; the power provided to the Director of Education (Secondary)/ State Government under Section 16-E(10) of the Act, 1921 is exercisable when the appointment of a teacher has been made in contravention of the provisions of the Act, 1921 and in such situation the appointment can be cancelled by the Director/ State Government exercising its power under Section 16-E(10) of the Act, 1921.
It is next contended that the approval of the Board as provided under Section 21 of the Act, 1982 is required when the Committee of Management after completing the disciplinary proceedings against a teacher proposes certain punishments for seeking approval of the Board, whereas the Director of Education (Secondary) being the Chairman of the Board of High School and Intermediate Education6 is empowered under Section 16-E(10) of the Act, 1921 to cancel the appointment of a teacher and the State is empowered to cancel the appointment of a Principal if it has been obtained in contravention with the provisions of the Act.
Sri Singh amplifying his submissions further contended that the provisions of Section 16-E(10) of the Act, 1921 can be invoked to cancel the appointment of an incumbent, whereas Section 21 of the Act, 1982 is applicable for removable, dismissal, reduction in rank, reduction in emoluments or withholding of increment of an incumbent as a measure of punishment after completion of the disciplinary proceedings.
It is submitted that qualification for appointment on the post of teacher/ Head of institution has been provided in Appendix-A of the Act, 1921 and in no other statute, and hence it is the duty of the Director of Education (Secondary)/the State Government to ensure compliance of the provisions of the Act, 1921, which provides the essential qualification. Lastly, it was urged that under the Act, 1982, the Rules and the Regulations framed thereunder the Board does not have power to review its own order/ recommendation in favour of the selected candidate as it becomes functus officio after recommendation of the panel of the select list. Therefore, if any ineligible candidate obtains selection by concealment or by misrepresentation of fact, there is no specific power conferred upon the Board under the said Act and Rules to cancel his appointment at later stage, whereas a specific power has been invested in the Director of Education/ State Government under Section 16-E(10) of the Act, 1921 to cancel such appointments, which have been made in contravention of the provisions of the Act, 1921 and the qualification provided therein.
Sri Vivek Rai, learned Additional Chief Standing Counsel, has submitted that the State Government in the case of Head of institution and the Director in the case of teacher of an institution have been vested with power to pass such orders in order to rectify any act done in contravention of the provisions of the Act, 1921. In Section 16-E(10) of the Act, 1921 the word 'cancel' has been used and not 'termination' or 'dismissal', which have been used under Section 16-G(3) of the Act, 1921; Section 16-G(3) of the Act, 1921 has used the words discharged, removed, dismissed from service and reduction in rank. Section 16-E(10) and Section 16-G(3) of the Act, 1921 operate in two different fields.
It was next submitted that the termination proceeding has been provided under Section 16-G(3) of the Act, 1921 and the procedure has been provided under Regulations 35 to 38 of Chapter-III of the Regulations framed under the Act, 1921, therefore, in the case of termination or dismissal the approval of the Board under Section 21 of the Act, 1982 is required but in case of cancellation of appointment being in contravention of the provisions of the Act, 1921 the power under Section 16-E(10) of the Act, 1921 is still available in spite of the provisions of Section 21 of the Act, 1982.
Learned counsel submitted that in case of conflict between two provisions the endeavour of the Court should be to interpret the two conflicting provisions in such a manner so that they harmoniously occupy the field without causing difficulty.
Before adverting to the rival submissions made by learned counsel for the parties, it is necessary to advert the statutory provisions.
Relevant provisions of the Act, 1921 i.e. U.P. Intermediate Education Act, 1921:
The Board of High School is defined under Section 2(a) of the Act, 1921 in the following terms:
"(a) "Board" means the Board of High School and Intermediate Education;"
Section 3 of the Act 1921 provides constitution of the Board. It says that the Director of the Education is its ex officio Chairman; and amongst others, two heads of the institutions maintained by the State Government, nominated by the State Government; the Director, State Council of Educational Research and Training, Uttar Pradesh, Lucknow or a representative nominated by him; the Director, State Institute of Educational Management and Training, Uttar Pradesh, Allahabad or a representative nominated by him; the Additional Director of Education (Correspondence), Correspondence Educational Institute, Allahabad; the Additional Director of Education, (Vocational Education), Lucknow; the Director, State Institute of Science Education, Allahabad ex-officio; one District Inspector of Schools nominated by the State Government; one Regional Joint Director of Education nominated by the State Government; one Professor of a Degree College affiliated to a University established by law in Uttar Pradesh nominated by the State Government; one Professor of an Engineering College affiliated to an Engineering University established by law in Uttar Pradesh nominated by the State Government; one Professor of a Medical College affiliated to a Medical University nominated by the State Government are the other members of the Board of High School.
Section 11 of the Act, 1921 enumerates powers and duties of Chairman. It reads thus:
"11. Powers and duties of Chairman. - (1) It shall be the duty of the Chairman to see that this Act and the Regulations are faithfully observed and he shall have all powers necessary for this purpose.
(2) The Chairman shall have power to convene meetings of the Board, shall call a meeting at any time after due notice, on a requisition signed by not less than one-fourth of the total membership of the Board and stating the business to be brought before the meetings.
(3) In any emergency, arising out of the administrative business of the Board, which, in the opinion of the Chairman, requires that immediate action should be taken. The Chairman shall take such action as he deems necessary and shall thereafter report his action to the Board at its next meeting.
(4) The Chairman shall exercise such other powers as may be prescribed by the Regulations."
Section 16-E of the Act, 1921 deals with the procedure for selection of teachers and heads of institutions. Hence, Section 16-E is reproduced below:
"16-E. Procedure for selection of teachers and heads of institutions.--(1) Subject to the provisions of this Act, the Head of Institution and teachers of an institution shall be appointed by the Committee of Management in the manner hereinafter provided.
(2) Every post of Head of Institution or teacher of an institution shall, except to the extent prescribed for being filled by promotion, be filled by direct recruitment after intimation of the vacancy to the Inspector and advertisement of the vacancy containing such particulars as may be prescribed, in at least two newspapers having adequate circulation in the State.
(3) No person shall be appointed as Head of Institution or teacher in an institution unless he possesses the minimum qualification prescribed by the Regulations:
Provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments.
(4) Every application for appointment as Head of Institution or teacher of an institution in pursuance of an advertisement published under sub-section (2) shall be made to the Inspector and shall be accompanied by such fee which shall be paid in such manner as may be prescribed.
(5) (i) After the receipt of applications under sub-section (4), the Inspector shall cause to be awarded, in respect of each such applications, quality-point marks in accordance with the procedure and principles prescribed, and shall thereafter, forward the applications to the Committee of Management.
(ii) The applications shall be dealt with, the candidates shall be called for interview, and the meeting of the Selection Committee shall be held, in accordance with the Regulations.
(6) The Selection Committee shall prepare a list containing in order of preference the names, as far as possible of three candidates for each post found by it to be suitable for appointment and shall communicate its recommendations together with such list to the Committee of Management.
(7) Subject to the provisions of sub-section (8), the Committee of Management shall, on receipt of the recommendations of the Selection Committee under sub-section (6), first offer appointment to the candidate given the first preference by the Selection Committee, and on his failure to join the post, the candidate next to him in the list prepared by the Selection Committee under this section, and on the failure of such candidate also, to the last candidate specified in such list.
(8) The Committee of Management shall, where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagreement to the Regional Deputy Director of Education in the case of appointment to the post of Head of Institution and to the Inspector in the case of appointment to the post of teacher of an Institution, and his decision shall be final.
(9) Where no candidate approved by the Selection Committee for appointment is available, a fresh selection shall be held in the manner laid down in the section.
(10) Where the State Government, in cases of the appointment of Head of Institution, and the Director in the case of appointment of teacher of an institution, is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be, the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary.
(11) Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, termination or otherwise of an incumbent occurring during an educational sessions, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed:
Provided that no appointment made under this sub section shall, in any case, continue beyond the end of the educational session during which such appointment was made."
Section 16-G of the Act, 1921 deals with conditions of service of Head of institutions, teachers and other employees. Sub-section (3)(a) of the said section is relevant for our purposes, hence it is extracted below:
"16-G(3)(a)-No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emolutions, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations."
The Board of High School exercising its said power invested on it under Section 15 of the Act, 1921 has framed the Regulations7. Chapter I of the Regulations deals with scheme of administration; Chapter II deals with appointment of Heads of institutions and teachers; and, Chapter III deals with conditions of service. Chapter II has been substituted by a notification dated 07th July, 1976 and a further amendment was made by a notification dated 09th December, 1976. Regulation I of Chapter II deals with minimum qualifications for appointment as head of institutions and teachers as given in Appendix-A. Appendix-A of the Regulations provides the minimum qualification.
Section 16-E of the Act, 1921 lays down the procedure for selection of teachers and heads of institutions. Section 16-E was inserted by U.P. Act No. 35 of 1958. Later it was substituted by Section 14 of the Uttar Pradesh Secondary Education Laws Amendments Act, 1975 (U.P. Act No. XXVI of 1975). By Section 18 of the U.P. Act No. XII of 1978 a proviso has been inserted to Section 16-E. By the same amendment of 1975, Section 16-FF and Section 16-FFF have been added. Section 16-E provides a complete procedure for selection of teacher and head of institutions.
Section 16-G was also substituted by U.P. Act No. 26 of 1975. It provides that conditions of service of Heads of Institutions, teachers and other employees shall be governed by the Regulations. As discussed above, the Regulations lays down details regarding period of probation, condition of confirmation, conditions for promotion and punishment. It also provide scales of pay, payment of salaries, transfer of service from one recognized institution to another, and maintenance of records, etc. Sec 16-G(3) of the Act, 1921 says that no Principal, Headmaster or teacher may be discharged or removed or dismissed from service or may be awarded any other punishment, without prior approval of the Inspector. This section also empowers the Inspector to approve or disapprove or reduce or enhance the punishment.
The aforementioned provisions were governing the selection, appointment and service conditions of all the teachers of recognised institutions.
In the year 1982 The Uttar Pradesh Legislature passed The Uttar Pradesh Secondary Education 8(Services Selection Boards) Act, 1982. The objects and reasons of this Act is material for our purposes, therefore, relevant part of it is extracted below:
"The appointment of teachers in secondary institutions recognised by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and regulations made thereunder. It was felt that the selection of teachers under the provisions of the said Act and the regulations was some times not free and fair. Besides, the field of selection was also very much restricted. This adversely affected the availability of suitable teachers and the standard of education. It was therefore, considered necessary to constitute Secondary Education Service Commission at the State level, to select Principals, Lecturers, Head-masters and L.T. Grade teachers, and Secondary Education Selection Boards at the regional level, to select and make available suitable candidates for comparatively lower posts in C.T./J.T.C./B.T.C. Grade for such institutions.
2. Under Section 16-G(3) of the Intermediate Education Act, 1921, Managements were authorised to impose punishment with the approval of District Inspectors of Schools in matters pertaining to disciplinary action. This provision was found to be inadequate in cases where the management proposed to impose the punishment of dismissal, removal or reduction in rank and so it was considered necessary that this power should be exercised subject to the prior approval of the Commission or the Selection Boards, as the case may be, which would function as an independent and impartial body."
Relevant provisions of the U.P. Secondary Education (Services Selection Boards) Act, 1982:
We need to extract some of the relevant provisions of the Act, 1982. Sections 9, 21 and 32 of the Act, 1982, as are material for us, are reproduced below:
"9. Powers and duties of the Board. - The Board shall have the following powers and duties namely--
"21. Restriction on dismissal etc. of teachers.-- The Management shall not, except with the prior approval of the Board dismiss any teacher or remove him from service or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without prior approval shall be void."
"32. Applicability of U.P. Act No. II of 1921. - 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 thereunder shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher."
The State Government exercising its power under Section 35 of the Act, 1982 has framed the Uttar Pradesh Secondary Education Services Selection Board, Rules, 19989. Rule 5 of the Rules, 1998 has adopted the qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Act, 1921. The Act, 1982 and the Rules framed thereunder also retain the provision of transfer of a teacher from one institution to another, as provided in the conditions of service provided under Chapter III of the Regulations framed under the Act, 1921.
In the year 1985 the State Government framed The Uttar Pradesh Secondary Education Services & Commission (Procedure for Approval of Punishment) Regulations, 198510. Sections 4, 5 and 6 thereof are relevant for our purpose and they are extracted below:
"4. Proceeding to be completed.-- Before submitting cases to the Commission for approval of the Commission under sub-section (1) of Section 21 the management shall complete all proceedings as per procedure prescribed in Intermediate Education Act, 1921 or the rules, if any, and regulations made thereunder or orders issued by the Education Department and/or Board of High School and Intermediate Education, U.P., from time to time in regard to any action mentioned in sub-section (1) of Section 21 of the Act, proposed to be taken.
5. Documents to accompany.-- Such cases shall be submitted to the Commission through the Inspector and while submitting cases to the Commission, the following documents will invariably be submitted to the Commission:
(i) Copy of the resolution of management setting up the Inquiry Committee;
(ii) Charge-sheet prepared and served on the teacher;
(iii) Explanation furnished by the charged teacher in reply to the charge-sheet;
(iv) Full record of proceedings including evidence taken and cross examination, if any, done and personal hearing, if any, given by the Inquiry Committee appointed for the purpose;
(v) Reports of the Inquiry Committee;
(vi) Proposal in regard to the punishment to be inflicted;
(vii) Copy of the resolution adopted by the Management in regard to the proposed punishment;
(viii) Up-to-date service book and character roll of the charge-sheeted teacher.
6. Inspector to forward the papers.-- The Inspector shall ensure that the documents are complete as required in Regulation 5 and shall forward the same ordinarily within 30 days from the date of receipt of the papers in the first instance from the management. He may point out the defects, if any, in the proceedings of the Management."
At this juncture it would be advantageous to consider the comprehensive analysis of the interrelationship between the provisions of the Act, 1921 and the Act, 1982.
The Act, 1982 was enacted to achieve the specific object. The object of the Act, 1982 provides that the Board has been established for the selection of the teachers in the institutions recognised under the Act, 1921. The object of the Act, 1982 at the cost of repetition reads as under:
"AN ACT to establish Secondary Education Services Selection Boards for the selection of teachers in institutions recognised under the Intermediate Education Act, 1921."
The said object clearly shows that the intention of the Legislature was not to enact this Act No. 5 of 1982 as a complete code but its limited purpose was to make selection of the teachers. Section 32 of the Act, 1982 is very material to decide the issue at hand as it deals with the applicability of the Act, 1921. An examination of Section 32 of the Act, 1982 shows that it does not have any non-obstante clause and there is complete absence of provision of overriding effect, rather the intention of the Legislature is that the provisions of the Act, 1921 and the Regulations framed thereunder shall continue and only those provisions of the Act, 1921 which are inconsistent with the provisions of the Act, 1982 shall not be applicable for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of teachers. The intendment of the Legislature is evident not only from Section 32 of the Act, 1982 but other sections also of the Act, 1982, which show that the intention of the legislature is that both the Acts shall act in their respective fields. Chapter IV of the Act, 1982 deals with appointment of selected teachers. Section 16 of the Act, 1982 also provides that some of the provisions of the Act, 1921 shall continue to operate in respect of appointments of retrenched employees, appointment of a teacher by transfer, the dependent of a teacher or other employee in the matter of compassionate appointment. Sub-section (2) of Section 16 of the Act, 1982 says that except those provisions any appointment made in contravention of Section 16 of the Act, 1982 shall be void. The provision of Section 16 also indicates that provisions of both the Acts i.e. Act, 1921 and Act, 1982 shall be operative. The Act, 1921 is a complete code in itself, whereas the Act, 1982 has a limited operation in respect of selection of the teachers and head of institutions, and even in the case of stop-gap appointment Section 7-AA of the Act, 1921 confers the power on Management of the institution.
Now we shall discuss some of the provisions of the Act, 1921, which are clearly inconsistent with the provisions of the Act, 1982.
Section 16-E of the Act, 1921 provides the procedure for selection of teachers and head of institutions. Sub-sections (1) to (9) of Section 16-E are, in our opinion, inconsistent to the provisions of the Act, 1982. The legislature has entrusted the entire function of recruitment to the Board constituted under the Act, 1982. Thus, sub-section (1) to sub- section (9) of Section 16-E become inoperative.
However, sub-section (10) of Section 16-E gives the power to the State Government in the case of head of institutions and to the Director in the case of teachers, to cancel the appointment of head of the institution or teachers, as the case may be, if the State or the Director is satisfied that their appointment has been made in contravention of the Act, 1921. It is apposite to mention that recognition and the financial assistance is granted under the provisions of the Act, 1921, hence the State has retained its power to cancel the appointment in respect of head of the institution and the same power has been invested with the Director in case of teachers of the institutions. As discussed above, the qualification is prescribed under the provisions of the Regulations framed under the Act, 1921.
As regards the power of the Board under Section 21 of the Act, 1982, it is clear that the Management being appropriate authority has a power to take disciplinary action against head of institution and teachers. The Act, 1982 does not provide the procedure for disciplinary proceedings. It falls back on Chapter III of the Regulations framed under the Act, 1921. Under Chapter III of the Regulations detailed procedure has been laid down. Only the Committee of Management of the institution is authorised to initiate the disciplinary proceeding against the Head of the institution, the teachers and the employees. Therefore, a careful reading of Section 16-E(10) of the Act, 1921 and Section 21 of the Act, 1982 clearly indicate that both the provisions operate in different fields. There is no provision under the Act, 1982, which confers the powers upon the Board to initiate a proceeding against a Head of the Institution or teacher to take a suo motu action if it finds that he has secured the appointment on the basis of fraud, fabrication of the documents or there is a lack of essential qualification.
In case the submission that Section 16-E(10) of the Act, 1921 is inconsistent with the provision of Section 21 of the Act, 1982 is accepted, it is fraught with serious consequences. If a teacher is selected who lacks minimum qualification and submitted forged and fabricated documents or suppressed material facts, in that event the action can be taken only by the Committee of Management and the State Government or the Director will have no power to cancel his appointment. If both the sections are read harmoniously, the teacher shall not suffer any prejudice. Section 16-E (10) provides that before taking any action the teacher shall be furnished full opportunity. Moreover, the order passed under sub-section (10) of Section 16-E of the Act, 1921 can be challenged before the High Court under Article 226 of the Constitution of India. Thus, the function of the Board under the Act, 1982 to give approval after furnishing opportunity to the teacher is met by the procedure provided under Section 16-E(10) of the Act, 1921 as in both the cases before taking action against teacher the compliance of natural justice is ensured under the statutory provisions.
The aforementioned provisions, discussed above, unmistakably demonstrate the intention of the Legislature to continue the various provisions of the Act, 1921 and the Regulations framed thereunder. Since the teachers are selected by the Board under the Act, 1982, to provide them protection from the harassment at the hand of the Committee of Management, a provision has been made under Section 21 of the Act, 1982 that any punitive action against the teachers shall not be given effect to except with the prior approval of the Board. In this regard the State Government has framed the Regulations, 1985, which provides the procedure for prior approval of the Board before taking action by the Management against the teacher awarding him punishment. From the above analysis it is evident that the legislature has entrusted the power of the Inspector under section 16-G (3) upon the Board under the Act, 1982. However, the provision under Section 16-G(5) of the Act, 1921, which provides that suspension of a head of institution or teacher shall require approval of the Inspector within the stipulated period, provided in the said section is still intact and operative.
While enacting the Act, 1982 the Legislature was fully conscious about the provisions under Section 16-G(3) and 16-E of the Act, 1982. Had it been the intention of the Legislature to make the Act, 1982 a complete Code regarding the recruitment and service conditions of the teachers, it could have amended the Act, 1921 or could have given the overriding effect of the Act, 1982. By implication it cannot be assumed that the provisions of the Act, 1921 have been repealed in respect of the appointment and service conditions, rather the language of Section 32 of the Act, 1982 clearly provides that various provisions of the Act, 1921 and the Regulations framed thereunder shall continue to operate to the extent it is not inconsistent with the provisions of the Act, 1982.
Recently, a Full Bench of this Court in the case of Santosh Kumar Singh v. State of U.P. and others11 had the occasion to deal with Section 16-E (11) of the Act, 1921. The present reference has been made in respect of Section 16-E (10) of the Act, 1921. The Full Bench while interpreting Section 16-E(11) came to hold that after the Removal of Difficulties Orders were rescinded, there was no inconsistency between the provisions of Section 16-E (11) and the Act, 1982. Thus, in certain contingencies the Full Bench held that the Committee of Management can make appointment in terms of Section 16-E (11). We are in respectful agreement with the principle laid down by the Full Bench in Santosh Kumar Singh (supra), wherein the Full Bench after elaborate analysis of the provisions of both the Acts has observed as under:
"18. Section 16-E of the Act of 1921 provides for the procedure for selection of teachers and heads of institutions. Sub-section (11) of Section 16-E is to the following effect:
"(11) Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, termination or otherwise of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed:
Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made."
*** *** *** 20. We consequently answer the reference in the following terms: (a) * * * (b) * * *
(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and"
A reference may be made to another Full Bench decision of this Court in the case of Dr. Jai Prakash Narayan Singh v. State of U.P. and others12. In this case also the Full Bench has considered the interrelationship of the provisions of the U.P. State Universities Act, 1973 and the U.P. Higher Education Services Commission Act, 198013. It is worthwhile to mention that the object of the Act, 1980 and the Act, 1982 are similar. The Full Bench opined that the provisions of the State Universities Act shall continue to operate in so far they are not inconsistent with the provisions of the Act, 1980.
It is apt to note here that in all other enactments where non-obstante clause is used in the special Act, in such cases the special Act overrides the general Act but one of the essential conditions is that the latter Act must be a special Act which is a complete Code.
Crawford in his book on Statutory Construction has observed as under:
"All laws are presumed to be passed with deliberation, and with full knowledge of all existing cases on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v. Lease [5 Will 225]. It is a rule, says Sedgwick that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. (p. 633) And, as we have already suggested, it is essential that the new statute cover the entire subject matter of the old; otherwise there is no indication of the intent of the legislature to abrogate the old law. Consequently, the latter enactment will be constructed as continuation of the old one. (p. 624)"
In Deep Chand v. State of Uttar Pradesh14 the Supreme Court has held that in order to ascertain whether there is repugnancy or not, following principle has been laid down:
"(1) Whether there is direct conflict between the two provisions;
(2) Whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law;
(3) Whether the two laws occupy the same field."
In R.S. Raghunath v. State of Karnataka and another15 the Supreme Court has quoted with approval its earlier judgment in Ajoy Kumar Banerjee v. Union of India16. The following passage is in this regard apposite:
"38. In Ajoy Kumar Banerjee v. Union of India17 Sabyasachi Mukharji, J. (as His Lordship then was) observed thus: (SCC p. 153, para 38) "As mentioned hereinbefore if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle "generalia specialibus non derogant". The general rule to be followed in case of conflict between the two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment.
If either of these two conditions is fulfilled, the later law, even though general, would prevail."
In the present case, the question of repugnancy does not arise as both the Acts have been enacted by the State Legislature under Schedule VII, List III, Entry 25. As regards the inconsistency, as we have discussed above, the Act, 1982 is not a complete Code and Section 32 thereof itself provides about the applicability of provisions of the Act, 1921.
In the present case, as discussed above, the Act, 1982 is not a complete Code in itself but it has been enacted with a limited purpose to make selection of teachers and to provide them protection from any harassment from the Management.
In the case of C/M Shri Maharshi Balmeek Inter College (supra) a Principal was appointed by the Board. Initially the Committee of Management of the institution did not permit him to join the institution. After protracted litigation, the Committee of Management allowed him to join in February, 2011 and immediately thereafter it started making enquiries regarding eligibility of the selected Principal. The Committee of Management suspended him. The suspension order was approved by the District Inspector of Schools. The Principal filed a writ petition before this Court challenging the order of the District Inspector of Schools, whereby he has approved the suspension of the Principal. The said writ petition was allowed by the learned Single Judge with the finding that only the State Government has authority under Section 16-E(10) of the Act, 1921 to consider the fact whether he is eligible for appointment or not. Aggrieved by the said order of the learned Single Judge, a special appeal was filed, which was allowed by the Division Bench holding that power of selection is vested with the Board and the power of approval of dismissal also vests in the Board. Accordingly, it was found that Section 16-E(10) of the Act, 1921 would not apply and the power in such cases would be deemed to be vested in the Board. All questions of eligibility and qualifications raised have to be exercised by the Board for consideration and for taking final decision in the matter. We find that the view taken by the learned Single Judge was correct. The judgment of the special appeal setting aside the order of the learned Single Judge is not based on sound principle of law. In our view, the Division Bench has failed to advert to the scope of Section 32 of the Act, 1982 and has also not considered that there was no inconsistency between Section 16-E (10) of the Act, 1921 and Section 21 of the Act, 1982. As discussed above, both the sections operate in different fields. Accordingly, we find that the view taken by the Division Bench is not correct.
For the reasons mentioned above, we do not find any inconsistency between the provisions of Section 16-E(10) of the Act, 1921 and Section 21 of the Act, 1982. In both the Acts, the State Government or the Director, as the case may be, has the power to take the decision if it finds that the appointment of a teacher has been made contrary to the provisions of the Act.
In the light of the discussions made above, we proceed to answer the reference in the following terms:
(I) The decision in Special Appeal No. 476 of 2014, C/M Shri Maharshi Balmeek Inter College v. Rajesh Kumar Singh and others, 2014 (3) ESC 1778, does not lay down the correct proposition of law.
(II) There is no inconsistency between Section 16-E(10) of the U.P. Intermediate Education Act, 1921 and any provision of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982. Therefore, the authorities mentioned in Section 16-E (10) can exercise their power, irrespective of the provisions under Section 21 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982.
The reference is answered accordingly.
Let the papers be placed before the appropriate Division Bench for disposal of the special appeal.
Order Date :- 26th April, 2019 Digamber/SKT