Jagmohan Lal Sinha, J. - (1.) The petitioner in this case is an educational institution for teaching girls for the High School and Intermediate examinations of the Intermediate Education Board of U.P. The institution is managed under a Scheme of Administration framed under Sec. 16 -A of the Intermediate Education Act, 1921 (hereinafter to be called the Act). Paragraph 20 of that Scheme, translated in English, is as follows: - - EMERGENCY PROVISION (1) When the State Government is of the opinion that circumstances have arisen which have rendered it impossible to properly carry on the administration of the institution in the normal manner, it may appoint an administrator - - Provided that no such administrator shall be appointed except: (a) on the recommendation of the committee, or (b) on the recommendation of the Director of Education after allowing the President an opportunity to submit a written explanation against the said recommendation. (2) Upon such appointment being made the committee and all its office -bearers shall stand suspended and all their powers and functions shall vest in the administrator except that the administer shall not have the authority to take loan for or on behalf of the society/institution or to transfer any immovable property thereof. (The remaining sub -paragraphs of para 20 are not material). Purporting to act under the aforesaid paragraph the State Government (hereafter called respondent No. 1) issued a notice on August 31, 1971 to the President of the Committee of Management of the institution to show cause why, for the reasons stated therein, the Government should not appoint an administrator. On September 13, 1971 the President sent this reply. By an order dated December 20, 1971, however, the Government appointed the District Inspector of Schools (hereafter called respondent No. 2) to be the administrator, who took over charge of the institution on December 23, 1971. The petition challenges the appointment of the administrator on the ground, inter alia, that para 20 of the Scheme of Administration of the institution, under which the respondent No. 1 acted to appoint respondent No. 2 to be the administrator, is ultra vires of the Act, and, therefore, nonexistent. Some other grounds have also been stated in the writ petition, but since they were not pressed, it is not necessary to refer to them.
(2.) The petition first came up for hearing before a learned Single Judge of this Court, who found that there was some conflict of view on the point in issue in two decisions of this Court, viz., Adarsha Kannya Uchchtar Madhyamik Vidyalaya, Kanpur v/s. State of U.P. and others, 1971 A.L.J. 1311 decided by B.N. Lokur, J. and D.A.V. Inter College Board, Meerut v/s. State of U.P. and others Writ Petition No. 3273 of 1970 decided by CD. Parekh, J. on Dec. 10, 1970. In the former case B.N. Lokur, J. held that para 20 of the Scheme of the Administration (which is identical to para 20 of the Scheme of Administration in the instant case) was ultra vires and outside the scope of Sec. 16 -A of the Intermediate Education Act. In the latter case CD. Parekh, J. held that Sec. 16 -D of the Intermediate Education Act did not apply to cases where there was dispute regarding the persons constituting the managing committee, and in such cases an order appointing an administrator could be passed under para 31 (which corresponds with Para 20) of the Scheme of Administration. Obviously, if paragraph 31 of the Scheme of Administration is ultra vires of the Act, the State Government could not act or appoint an administrator thereunder. In view of this conflict, the learned Single Judge referred the case to a larger Bench, and it is thus that the case has come up before us.
(3.) In view of the contentions raised before us, the only question for consideration is whether paragraph 20 of the Scheme of Administration of the petitioner institution is repugnant to the Act and could not be acted upon by the Government to appoint an administrator of the petitioner institution.;