- (1.) Management had preferred this petition to challenge the appointment of respondent No. 7 as Principal of the institution by transfer. At the relevant time, there was no Committee of Management and a Prabandh Sanchalak had been appointed. The appointment of Prabandh Sanchalak has been upheld by a learned Single Judge and the same was affirmed by a learned Division Bench. When the matter came up for hearing, the learned Judge by his order dated May 23, 2002 noted the judgment of another learned Single Judge in the case of Narendra Kumar v. State of U.P. and Ors., 2002 46 AllLR 301 , which had taken the view that under Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921, it is provided that the post of Principal in a institution can also be filled by transfer from another college, where the person sought to be transferred was appointed after selection by the Board, but such transfer is permissible only with the consent of the Management of both the institutions. It was further observed that according to the Note at the end of Regulation 61(2) of Chapter III of the aforesaid Regulations "management" has been defined to include "the managing committee" or the officer or authority in whom the management is vested which means that the management for the purpose of giving consent for transfer, would include the "Prabandh Sanchalak". The learned Judge after considering the issue was pleased to record in paragraph 9 of the judgment as to why he is in disagreement with the interpretation given in Narendra Kumar (supra). The reasons cited are as under: (a) A 'Prabandh Sanchalak' under the Scheme of Administration is appointed for specific purpose, after expiry of terms of Committee of Management for holding elections. He holds a temporary position to carry out the object for which he has been appointed by the Deputy Director of Education. He, therefore, cannot perform the essential functions of management which includes the appointment of Principal by transfer. (b) The word 'such person' or 'authority' in whom the powers of management and conducting of function have been vested means a manager or in his absence, a person nominated by the Committee of Management. In Regulations 55 to 61, the word 'Committee of Management' has been used and that note (1) has been provided in Regulation 61(1) to clarify that word 'Committee of Management' means a person or authority authorised by the management. A Prabandh Sanchalak, is no doubt, appointed under the Scheme of Administration, but he is a nominee of the Deputy Director of Education. He cannot, therefore, be a person in whom the Committee of Management have been vested the powers to manage and control the institution. (c) A person appointed for specific purpose, namely, to hold election, cannot be entrusted with all the functions, particularly, the essential function of management which includes the appointment of Principal. (d) A Principal is not only head of institution but is also responsible for ethos and aspirations of educational institution established by a society. Such a person cannot be imposed upon the institution, and that his appointments, without consent of Committee of Management, will amount to violating the right of the Committee of Management to establish and manage the institution.
(2.) In view of that, a reference has been made to a Division Bench of this Court.
(3.) At the hearing of these petitions, various counsels have submitted their submissions in support of the view taken by the reference Judge. It has been argued that the sole purpose of appointing a Prabandh Sanchalak is to get the election held and to let a duly constituted Committee of Management to be in power. The Prabandh Sanchalak, appointed under the Scheme of Administration cannot be a substitute of the Committee of Management and the sole object of such appointment, is to get the election held within a time bound framed and to have a duly elected Committee of Management to come in power. It is, therefore, submitted that if it is held that the Prabandh Sanchalak is having all powers of the Committee of Management, this would be in violation of Articles 14 and 19 of the Constitution of India. Reliance for that purpose is placed on a judgment, in the case of Smt. Damyanti Naranga v. The Union of India and Ors., 1971 1 SCC 678. At the outset, we may mention that the vires of the provisions by which the Prabandh Sanchalak is to be appointed is not the subject matter of a challenge before us. It is then pointed out that Regulation 61, which deals with transfer of Principals which include teachers follows other Regulations and the transfer is to be followed step by step and in case Prabandh Sanchalak is appointed, all other Regulations would be undone. Insofar as model Scheme of Administration is concerned, it is pointed out that the Committee of Management has to pass resolution and on failure, the power is with the Director of Education to observe the procedure under Section 16B of the Inter Mediate Education Act to recommend for making appointment of administrator. It is then argued that this Court has held that the Prabandh Sanchalak has no right to enroll the members and not only that, this view on similar facts and question of law, the Supreme Court has held that the administrator appointed under the Cooperative Societies Act, has no power to enroll members. Reliance has been placed on various judgments of this Court. It is further submitted that a literal and plain interpretation sought to be given that the Prabandh Sanchalak (Authorized Controller) is the substitute of the Committee of Management, cannot be accepted for arriving to a conclusion that the Authorized Controller has the power of giving consent under Regulation 58 for the transfer of the a Principal as the said nomination in the place of the Committee of Management is not self imposed. It is, therefore, submitted that as such the Note appended with the Regulation 61 cannot be exhaustive and the same must be construed in such manner to make it meaningful and the exercise of power should be judged on the ground of 'indispensability' and a purposive construction is preferable to the literal construction. The Note, therefore, it is submitted to Regulation 61, is only to enable the Authorized Controller to exercise such powers of the Committee of Management which are required for the discharge of routine administrative control of the institution.;