JUDGMENT : B.D. Agarwal, J. Doubt being raised as to correctness of the views expressed by the respective Division Bench in Ratanpal Singh v. Deputy Director of Education VI Region U.P. Lucknow. 1982 Education Cases 258 and Committee of Management National Inter College Adali Indra, District Azamgarh v. The District Inspector of Schools, Azamgarh 1883 UP LB EC 198 there is this reference made to larger Bench. The reference was made by a Division Bench under its order dated August 18, 1933, passed in Writ Petition No. 10301 of 1983, Raghunandan Pd. Bhatnagar v. Administrator, Gandhi Viuyalaya Intermediate College, Khekra, District Meerut. The other writ petitions giving rise to common issue are linked with it. 2. Facts relevant for purposes of the reference lie within a narrow compass-the central point for decision being whether despite the enforcement of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (U.P. Act 5 of 1982) and the rules framed thereunder, the provisions contained in Section 16-G(2)(o) of the U.P. Intermediate Education Act, 1921 and Regulations 55 to 62 of Chapter III framed thereunder continue to be operative and effective. 3. Vacancy arose for the post of Principal at the Gandhi Vidyalaya Intermediate College, Khekra, District Meerut, due to the retirement of H.S. Chauhan with effect from June 30, 1983. On attaining the age of superannuation, Raghunandan Prasad Bhatnagar, the Petitioner, is the senior most lecturer in the College and he claims that he was promoted by the Management to officiate in place of the Principal. On June 28, 1983, the Committee of Management resolved to appoint Vikram Singh Dhaka, Respondent No. 3, the Principal at the K.M.R. Inter College, Khampur Lohari, District Meerut, in this institution by transfer. A resolution was also passed by the Management of the K.M.R. Inter College permitting the Respondent No. 3 to proceed on transfer. The District Inspector of Schools also accorded approval to the transfer proposed on July 4, 1983. Respondent No. 3 was relieved on July 5, 1983, and asserts that be joined at the post of the Principal in the Gandhi Vidyalaya Intermediate College, Khekra on July 6, 1983, though, according to the Petitioner, this has not yet come about. The Petitioner has challenged the order whereby the District Inspector of Schools, Meerut, accorded approval on July 4, 1983, to the said transfer. The Petitioner has challenged the order whereby the District Inspector of Schools, Meerut, accorded approval on July 4, 1983, to the said transfer. This constitutes the subject matter of Writ Petition No. 10301 of 1983. 4. In Writ Petition No. 7574 of 1983 vacancy arose in the post of Principal at the K.K. Intermediate College, Meerut on account of the retirement of V.S. Rastogi, with effect from June 30, 1983, on attaining the age of superannuation. In anticipation of this vacancy, the Management had resolved on December 26, 1982, to take in the Principal from outside by transfer. There was advertisement male by the Management for this purpose on January 9, 1983. Certain applications were received including from D.P. Rastogi, Respondent No. 6, who had earlier been Principal in the R.S.M. Intermediate College, Dliampur, District Bijnor. On April 11, 1983, the Management of the K.K. Intermediate College, Meerut, resolved to appoint Respondent No. 6 by transfer; a resolution concurring to the transfer was passed by the Management of the R.S.M. Intermediate College on May 21, 1983. Papers were sent to the District Inspector of Schools, Meerut on May 23, 1983 seeking, his approval. The Petitioner had represented against this move on February 13, 1983 and again on April 18, 1983. The District Inspector of Schools had also issued notice on April 30, 1983, to the Management to show cause. The Director of Education, however, wrote to him on June 8, 1983, on the representation made to him by the Respondent No. 6 that the matter might be considered and the approval accorded for this step in accordance with the rules. The District Inspector of Schools gave has approval on June 21, 1983, though later on June 29, 1983, he has stayed the operation thereof in view of the [interim order of this Court. The Petitioner has challenged the approval sought from the Inspector in the matter. The Respondent No. 6 has pleaded inter alia that due to his younger brother, residing in village Siana, District Meerut, having lost the eye sight, he had applied on February 2, 1980 to the Management at the R.S.M. Inter College to consider his case for transfer to Meerut jurisdiction and further that he felt impelled to seek his transfer on account of serious ailment of his daughter receiving treatment in the Medical College, Meerut. 5. The other two Writ Petitions Nos. 5. The other two Writ Petitions Nos. 2263 of 1983 and 4951 of 1983 are interconnected. One Jai Singh, the Principal at the Veer Smarak Inter College, Baraut, District Meerut, was to retire on attaining the age of superannuation with effect from June 30, 1982. The Management resolved on June 13, 1982, to appoint by transfer Bhopal Singh, the Principal at the Adarsh Vedik Inter College, Sanoli Nagla, District Meerut. This was, however, not approved by the District Inspector of Schools, Meerut, who directed on July 16, 1982 that S.S. Tomar, who was the senior most lecturer next to Nawab Singh, be appointed as Principal on ad-hoc basis. Nawab Singh had, it would appear, declined on July 1, 1982, for being considered to this post. S.S. Tomar filed Writ Petition No. 8704 of 1982 against this order in so far as it directed the appointment to be made on ad-hoc basis. In view of the interim order made in this writ petition, the transfer of Bhopal Singh could not materialise. The Management thereupon resolved on December 3 1982, to take in one Om Prakash Rana, Principal B.P. Inter College' Bijwara, Meerut, as Principal. A resolution was also passed on November 22, 1982, by the Management of the B.P. Intermediate College permitting to relieve Om Prakash Rana on transfer. The District Inspector of Schools accorded approval on February 19, 1983, to this proposed transfer and a letter of appointment was issued to Om Prakash Rana on February 19, 1983 by the Management of Veer Smarak Inter College, Baraut. Aggrieved, S.S. Tomar has challenged the same in Writ Petition No. 2263 of 1983 filed by him. During the period that he was officiating as the Principal on ad hoc basis he intimated the vacancy to the U.P. Secondary Education Services Commission in pursuance whereof the Commission directed advertisements to be made on April 9, 1983. The Committee of Management has filed the other Writ Petition No. 4951 of 1983 seeking mandamus to restrain the Commission to give effect to the advertisement or to make any appointment in pursuance thereof contending that the vacancy having been filled in with the approval of the District Inspector of Schools dated 19th February, 1983, it was not available any longer to be filled in by selection through the Commission. 6. 6. It is necessary at the outset to give a resume of the relevant statutory provisions to understand the rival contentions of the parties. The Intermediate Education Act, 1921, had its birth in the first quarter of this century when the reins of the country were in foreign hands and the concept of laissez faire held the filed. The legislation was innocuous; the Board of High School and Intermediate Education was constituted with the object to prescribe courses of Instruction and to conduct examinations for the High School and Intermediate degrees; the appointment and the prescription of conditions of service of teachers including disciplinary control were left untouched being regarded as matters of contract governed under the general law. With the dawn of independence the Legislature felt concerned to reorganize this entire system that is fundamental to the nation building. The U.P. Intermediate Education (Amendment) Act (U.P. Act 4 of 1950) only tinkered provide insignificantly as it did that the State Government could enlarge the term of office of the members of the Board by a maximum period of two years. A major dent in the Parent Act came, however, with the enactment of the U.P. Intermediate Education (Amendment) Act (U.P. Act 35 of 1958) brought with the object inter alia to introduce effective measures for reasonably restricting the activities of the management in the interest of the students and teachers with a view to harmonize the relationship between the teachers and the management BO as to bring about an atmosphere conducive to efficient imparting of education. The management jealous of the immunities it had enjoyed in the per-Constitution era did not loose time to assail the validity of the amending provisions. The challenge was taken to the Supreme Court. It forms the subject matter of the decision reported in Katra Education Society, Allahabad v. State of U.P. AIR 1967 SC 1307. The Supreme Court found that the restrictive provisions were not unreasonable and they did not violate Articles 14, 19 or 31 of the Constitution. 7. Section 16-A newly introduced made it incumbent upon the management to maintain a scheme of administration in respect of the educational Institutions under their respective charge and to have that approved by the Director. Periodical inspection of these institutions and the consequences for not removing the defects in administration were laid in Section 16-D. Section 16-E dealt with the appointment of teachers. Periodical inspection of these institutions and the consequences for not removing the defects in administration were laid in Section 16-D. Section 16-E dealt with the appointment of teachers. Qualifications for the appointment of teachers (including the Principals) were to be prescribed by regulations. Sub-sections (2) and (3) laid down: (2) There shall be constituted in every recognized institution a selection Committee for the purpose of selecting candidates for appointment as teachers in the institution. The head of the institution shall be an ex-officio member of the committee. (3) There shall likewise be constituted a selection committee of three members for the selection of Principal or Headmaster of the institution. The committee shall include as member a person not belonging to the district in which the institution is located, selected by the Committee of Management out of the regional panel referred to in Sub-section (4). 8. Further details concerning the selection of teachers were specified in Section 16-F: 16-F (1) Subject to the provisions hereinafter specified, no person shall be appointed as a Principal, Headmaster or teacher in a recognized institution unless he (a) Possesses the prescribed qualification or has been exempted under Sub-section (1) of Section (1) of Section 16-E; (b) has been recommended by selection committee constituted under Sub-section (2) or (3), as the case may be, of the said section and approved, in-the case of Principal or Headmaster by the Regional Deputy Director, Education, and in the case of a teacher by the Inspector. (2) The name of the selected candidate shall be forwarded for approval, In the case of a teacher, by the Principal or Headmaster, to the Inspector and, in the case of Principal or Headmaster, by the Chairman of the selection committee to the Regional Deputy Director, Education. A statement showing the names, qualifications and other particulars, as may be prescribed, of all candidates who may have applied for selection shall also be sent along with the name of the selected candidate. The Inspector or Regional Deputy Director, Education, as the case may be shall give his decision within two weeks of the receipt of the relevant papers, failing which approval shall be deemed to have been accorded. The Inspector or Regional Deputy Director, Education, as the case may be shall give his decision within two weeks of the receipt of the relevant papers, failing which approval shall be deemed to have been accorded. (3) Where the Regional Deputy Director, Education or the Inspector, as the case may be, disapproves for reasons to be recorded in writing of any name proposed under Sub-section (1), the management may, within three weeks of the receipt of the disapproval, make a representation against it to the Director in the case of a Principal or Headmaster and to the Regional Deputy Director, Education, in the case of a teacher, and the decision of the Director or the Regional Deputy Director, Education, as the case may be in the matter shall be final. 9. Section 16-G deals with the conditions of service of teachers, Sub-sections (3), (4) and (5) relate to discharge, removal or dismissal from service of Education; reduction in rank and other penalties and the provisions for appeal by the person aggrieved into the details whereof we are not required to enter. Sub-sections (1) and (2) provided; 16-G. Conditions of service of teachers- (1) Every person employed in a recognized 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 for as St 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 enquiry and the emoluments 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 recognized institution to another; (d) grant of leave and Provident Fund and other benefits; and (e) maintenance of record of work and service. 10. The picture is not complete without a reference to the Regulations framed under the Act. Chapter II pertains to "Appointment of Teachers (including Heads)" referable to Sections 16-E and 16-F. The Selection Committee for the selection of teachers was to consist of five members including the Head of the Institution. 10. The picture is not complete without a reference to the Regulations framed under the Act. Chapter II pertains to "Appointment of Teachers (including Heads)" referable to Sections 16-E and 16-F. The Selection Committee for the selection of teachers was to consist of five members including the Head of the Institution. For Principal or Head master the Selection Committee was to be constituted by the management on ad hoc basis for each selection. The ordinary procedure for selection by direct recruitment laid in Regulation 9 was extended by Regulation 10 to mutatis mutandis to filing in vacancy by promotion. Chapter 111 deals with Conditions of Service (Appointment, probation, confirmation and promotion) and is referable to Section 16-Q, Regulation 16 stated that the vacancy of a Head of an Institution shall (except where an institution is raised from a High School to an Intermediate College) be filled by direct recruitment for which teachers serving in the institution might apply without restriction as to upper age-limit. Regulations 55 to 62 made detailed provisions regarding "Transfer from one institution to another" as contemplated in Section 16-G(2)(c). Regulation 15. prescribed another safeguard namely that the transfer of a Principal, Head master or teacher while on probation from one institution to another shall not constitute a break in his probation, and action for his confirmation shall be taken as the institution to which he has been transferred. 11. Another important landmark in this sphere was reached with the enactment of the U.P. Secondary Education Laws (Amendment) Act, 1975 (U.P. Act 26 of 1975). In as far as relevant, the Statement of Objects and Reasons provides: In order to Improve the standard of education, it was desirable to provide for the selection of teachers through Selection Committee and to improve their conditions of service. For all these reasons, it was necessary to amend the Intermediate Education Act, 1921. 12. In as far as relevant, the Statement of Objects and Reasons provides: In order to Improve the standard of education, it was desirable to provide for the selection of teachers through Selection Committee and to improve their conditions of service. For all these reasons, it was necessary to amend the Intermediate Education Act, 1921. 12. Section 16-F which lays the "Procedure for selection of teachers and head of institutions" substituted the earlier provisions of Section 16-E and 16-F. The newly introduced Section 16-F specified in Sub-section (1) as under the constitution of the Selection Committee for the selection of candidates for appointment as Head of an Institution; 16-F, Selection Committee (1) For the selection of candidates for appointment as Head of an Institution, there shall be a Selection Committee consisting of- (i) the President or any member of the Committee of Management nominated by the Committee by resolution in that behalf, who shall be the Chairman: (ii) a member to the Committee of Management other than the one referred to in Clause (i), nominated by it in this behalf; (iii) three experts nominated by the Regional Deputy Director of Education from persons not belonging to the district in which the institution is situated, out of the panel of names prepared under the section. 13. Section 16-G substituted the marginal heading as "Conditions of service of Head of Institutions, teachers and other employees". Provision was made more specific for interim suspension and for the rest Sub-section (2) (including Clause (c) which relates to transfer of service from one recognized institution to another) was retained intact. 14. These amendments also entailed changes In the Regulations. Chapter II was substituted by notification published on 7th July, 1976. The minimum qualifications for appointment as Head of Institution are given in Appendix A. According to Regulation 2, the post of the Head of Institution shall (except where an institution is raised from a High School to an Intermediate College) be filled by direct recruitment after reference to the Selection Committee constituted u/s 16-F(1). The procedure is detailed in Regulation 1. The procedure is detailed in Regulation 1. The vacancy had to be advertised by the management; upon the applications received by the District Inspector of Schools or the Regional inspectors of Girls' Schools, as the case may be, had to award quality-point marks; the Selection Committee had to make selection on the basis of the total of quality point marks and awarded in the interview. In Chapter III (Conditions of Service) (Appointment, Probation, Confirmation and Promotion, Regulation 15 (referred to above) is retained. Provisions for "Transfer from one Institution to another" are-retained also except for the difference that Regulation 58 was omitted by notification published on 2-12-1975 and Regulations 59/19-A were substituted under the, same notification. These Regulations (as amended) provide: 55. A permanent employee of an institution, other than minority institution, desiring his transfer to another institution may make an application for the purpose through the Head and Manager of the institution to the Inspector of Schools or the Regional Inspectress, as the case may be. The application, besides other particulars of the applicant, shall contain the names of institutions, places or districts to which the transfer is desired. If the application is forwarded by the Manager, copies of the service book and character roll should be sent along with it. After an application has been forwarded an intimation should be sent by the employee through the Head Master/Principal and the Manager to the Inspector/Regional Inspectress before April 1, each year intimating whether the request for transfer continues to hold good. Failing such intimation it would be presumed that the request has lapsed. 56. Application received by the Inspector or Regional Inspectress under Regulation 55 shall be forwarded by him/her to the Inspector/Regional Inspectress in whose jurisdiction the desired place of transfer lies or to the Manager of the institution if it lies within his/her own jurisdiction. 57. The Inspector and Regional Inspectress shall maintain a register of applications for transfer received by them under Regulations 55 and 56. 58. Omitted. 59. No person employed in a recognised institution shall be transferred from that institution to any other institution unless- (a) the Committee of Management for each such institution, by means of a resolution, duly passed in that behalf, concur in such transfer; (b) the permission in writing of the Inspector is obtained before giving effect to such transfer. 58. Omitted. 59. No person employed in a recognised institution shall be transferred from that institution to any other institution unless- (a) the Committee of Management for each such institution, by means of a resolution, duly passed in that behalf, concur in such transfer; (b) the permission in writing of the Inspector is obtained before giving effect to such transfer. 59-A. Upon the transfer of any person under Regulation 59 the following consequences shall ensure, namely; (a) such person shall become an employee of the institution to which he is transferred and shall hold office by the same tenure, at the same remuneration and upon the same other conditions of service as he would have held if the transfer had not taken effect, and shall continue to do so, unless and until such tenure, remuneration and other terms and conditions are duly altered; (b) the seniority of such person in relation to other employees in the same cadre and grade serving in the said institution shall be subject to reification in accordance with law; (c) any services rendered by such person before the date of transfer in the institutions from which he is transferred shall, for the purpose of this regulation, be deemed to be services rendered under the institution to which he is transferred. 60. The order of appointment in the new institution of an employee transferred from another institution shall mention along with other particulars prescribed, the fact of his transfer and the name of the institution from which he has been transferred. 61. Within a month of the transfer of an employee from one institution to another the' Manager of the former shall, under intimation to the Inspector or Regional Inspectress concerned, send to the Manager of the latter institution the employee's service Book, Character Roll, Leave Account, Provident Fund Account and other relevant papers, all duly posted upto date. 62. An employee shall not be entitled to travelling allowance on transfer. He will, however, be permitted journey time at the rate of one day for every 100 miles or part thereof subject to a maximum of three days. The salary for journey time will in the absence of agreement to the contrary, be paid by the institution which he joins on transfer. 15. The mechanism introduced by the U.P. Act 26 of 1975 was given a trial for nearly six years. The salary for journey time will in the absence of agreement to the contrary, be paid by the institution which he joins on transfer. 15. The mechanism introduced by the U.P. Act 26 of 1975 was given a trial for nearly six years. The Legislature in its wisdom found it necessary to make yet another experiment to bring about greater efficiency in this direction. The U.P. Secondary Education Services Commission and Selection Board Act (U.P. Act 5 of 1982) was enforced with effect from July 14, 1981 replacing the U.P. Secondary Education Services Commission and Selection Boards Ordinance (U.P. Ordinance No. 8 of 1981) which had been promulgated on July 10, 1981. The Statement of Objects and Reasons appended to this Act reads: 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 selection of teachers under the provisions of the said Act and the regulations was sometimes 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. grades for such Institutions. 16. In para 2 it is stated that the provision made u/s 16-G(3) authorising the management to impose punishment with the approval of the District Inspector of Schools in matters of disciplinary action was found inadequate and so it was considered necessary that the power to inflict major penalties should be exercised subject to the prior approval of the Commission which would function as independent and impartial body. 17. With this object in view the Act has constituted the U.P. Secondary Education Service Commission (for short, the Commission) comprising of a person from Judicial Service and certain number of educationists. 17. With this object in view the Act has constituted the U.P. Secondary Education Service Commission (for short, the Commission) comprising of a person from Judicial Service and certain number of educationists. The powers and duties of the Commission enumerated in Section 9 of this Act include (a) to prepare guidelines on matters relating to the method of recruitment and promotion of such categories of teachers as are specified in the Schedule; (b) to conduct examinations where considered necessary, hold interviews and make selection of candidates for being appointed as such teachers; (c) to select and invite experts and to appoint examiners for the purposes specified in Clause (b); (d) to make recommendations regarding the appointment of selected candidates and their promotion. 18. Section 10 provides for procedure of selection of teachers and Heads of the Institutions. According to Sub-section (2) the procedure for selection of candidates for appointment to the posts of teachers and heads of the institutions shall be such as may be prescribed. The Commission shall hold interviews (with or without examination) of the candidates and prepare a panel of those found most suitable for appointment (Section 11). Section 16 on which considerable stress was laid by learned Counsel for the Petitioners reads as follows: 16. Appointments to be made only on recommendations of the Commission or the Board. (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 aforesaid 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. There is then Section 32 which provides that: 32. (2) Every appointment of a teacher, in contravention of the provisions of Sub-section (1), shall be void. There is then Section 32 which provides that: 32. Applicability of U.P. Act 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 hereunder shall continue to be in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher. 19. In exercise of powers u/s 35 of this Act, the State Government has framed the U.P. Secondary Education Service Commission Rules, 1983 (the 'Rules' for convenient). The vacancies to be filled by direct recruitment have to be advertised-by the Commission in the manner prescribed in Rule 5. The procedure for direct recruitment is laid in Rule 6. The Commission after scrutiny of the applications and having regard to reservations for various categories calls for interview such number of candidates as it may consider proper. In respect of the head of an institution, it is incumbent on the Commission to call for senior most teachers of the institution whose names are forwarded by the management. Panel is drawn of those considered by the Commission as most suitable for appointment (Rule 7). In Rule 9 is contained the procedure for appointment by promotion. Persons eligible for consideration are teachers working in any recognised institution in L.T. or C.T. grade who possess the minimum qualifications and have had in the minimum five years teaching experience in the subject. The criterion is seniority subject to rejection of unfit. Acting u/s 34, the Commission has framed the U.P. Secondary Education Service Commission (Procedure and Conduct of Business) Regulations, 1983, laying down in detail bow the procedure and conduct of business of the Commission shall be regulated. 20. For the purposes of removing any difficulty in carrying out the provisions of the Act, the State Government is empowered u/s 33 to direct that the provisions of the Act shall, during the period specified in the notification, have effect subject to such adaptations as it may deem to be necessary or expedient. Such an order can be made only within two years from the date of commencement of the Act. Such an order can be made only within two years from the date of commencement of the Act. Para 2 of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (dated 31-7-1981) as substituted by para 5 of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (dated 11-9-1981) provides that: The management of an institution may appoint by promotion or by direct recruitment, a teacher on purely ad hoc basis in accordance with the provisions of the Order in the case of a substantive vacancy caused by death, retirement, resignation or otherwise. 21. Every such appointment of an ad hoc teacher shall cease to have effect when the candidate recommended by the Commission joins the post or when the period of six months from the date of such ad hoc appointment expires, whichever is earlier. 22. In Siya Ram Sakhya v. State of U.P. 1982 UPLBEC 324 a Division Bench of this Court repelled the challenge made to the views of the aforementioned U.P. Ordinance 8 of 1981 observing that there may not be any clear provision therein repealing the Intermediate: Education Act "in regard to the appointment in its entirety", but sufficient indications exist in the Ordinance which lead to the inescapable conclusion "that the selection after the promulgation of the Ordinance has to be made in accordance with the Scheme laid down by it and not according to the Intermediate Education Act" (Emphasis supplied). Validity of selections held by the Commission for the appointment of heads of certain institutions was challenged on various grounds including excessive delegation and arbitrariness which however was repelled by the another Division Bench in Indra Raj Singh Yadav v. V.P. Madhyamik Shiksha Sewa Ayog 1984 EC 197. 23. The main contention of the Petitioners' learned Counsel is that the word 'appointment' flanked by the word 'every' in Section 16 of the U.P. Secondary Education Service Commission and Selection Board Act (hereinafter referred to as the U.P. Act 5 of 19&2) be given its dictionary meaning without being in any manner qualified by addition or substraction. The argument proceeds on the principle that if the statute is plain, certain and free from ambiguity, a bare reading suffices and interpretation is unnecessary. The argument proceeds on the principle that if the statute is plain, certain and free from ambiguity, a bare reading suffices and interpretation is unnecessary. Where, in other words, the language is plain and capable of one interpretation only, the Court will not be justified in reading into the words of the Act a meaning which does not follow naturally from the language used by the legislature. It becomes necessary none-the-less to consider whether the language used by the legislature in Section 16 aforementioned admits of any doubt or difficulty or is capable of one interpretation only vide Motor Owners Insurance Co. Ltd. v. Jadaizi Keshavji Modi (1981) 4 SCC 666. In the (sic)quoted felicitous language of Justice Holmes in Town v. Fisner 245 US 418 a word is not a crystal, transparent and unchanged, it is the skin of a, living thought and may vary greatly in colour and content according to the circumstances and the time in which It is used'. In Hut ton v. Philltps the Supreme Court of Delawari said: (Interpretation) involves far more that picking out dictionary definitions of words or expressions used. Consideration of the context and the setting is indispensable property to ascertain a meaning. In saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually any one competent to understand it, and desiring fairely and impartially to ascertain its signification would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or far fetched, or unusual, or unlikely. 24. The passage was cited with approval by Krishna Iyer, J. (with whom Pathak J. concurred) in Manohar Nathurao Samarth Vs. Marotrao and Others, (1979) 4 SCC 93 . It was observed that even assuming that literelity in construction has tenability in given circumstances, the doctrine development in the nature of judicial interpretation takes us to other methods like the teleological, the textual, the contextual and the functional. Courts are not victims of verbatism; the emphasis may He on the function, utility, aim and purpose which the provision has to fulfil. Sarkaria J. speaking for the Supreme Court in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal Vs. Courts are not victims of verbatism; the emphasis may He on the function, utility, aim and purpose which the provision has to fulfil. Sarkaria J. speaking for the Supreme Court in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal Vs. Abani Maity, (1979) 4 SCC 85 observed at page 90 that "a statute, is not to be Interpreted merely from the lexicographers angle. The Court must give effect to the will and inbuilt policy of the legislature as discernible from the object and scheme of the enactment and the language employed therein and further that "Exposition ex visceribus acts is a long recognised rule of construction. Words in a statute often take their meaning from the context of the statutes as a whole. They are, therefore, not to be construed in isolation." Chinnappa Reddy, J. said the same thing in Mathuralal Vs. Bhanwarlal and Another, (1979) 4 SCC 665 when His Lordship observed that contextual construction must prevail over isolationist construction. At page 586 in Organo Chemical Industries and Another Vs. Union of India (UOI) and Others, (1979) 4 SCC 573 dealing with the Employees Provident Funds and Misc. Provisions Act, 1952 A.P. Sen, J speaking for the Division Bench laid down: Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself. A bare mechanical interpretation of the words devoid of concept or purpose will reduce most of legislation to futility It is a statutory rule, well established that the intention of the legislature must be found by reading the statute as a whole. 25. The following passage in Bidis v. General Accident, Fire and Life Assurance Corporation (1948) 2 All. ER 995 was cited with approval in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, (1973) 4 SCC 225 The first thing one has to do, I venture to think, in construing words in a Section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense, that they must be so read that their meaning is entirely independent of their context. Few words in the English language have a natural or ordinary meaning in the sense, that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question: In this state, in this context, relating to "this subject matter, what is the true meaning of that words. 26. It is well settled that in interpreting an enactment the court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the this chief it seeks to suppress Bengal Immunity Co. Ltd. AIR 1955 SO 661 ; R.M.D. Chamarbaugwalla Vs. The Union of India (UOI), AIR 1957 SC 628 ; All Saints High School, Hyderabad and Others Vs. Government of Andhra Pradesh and Others, (1980) 2 SCC 478 . 27. In K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another, (1981) 4 SCC 173 the Supreme Court speaking through Bhagwati, J. ruled (at p. 180) that the task of interpretation of statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. 'It is an attempt to discover the intent of the legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought." The Hon'ble Judge repeated the famous words of Judge Learned Hand when he said: ...It is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing; be it a statute, a contract of anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress of the dictionary but to remember that statutes always nave some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. 28. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress of the dictionary but to remember that statutes always nave some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. 28. Further, in reference to Section 52(2) Income Tax Act, 1961 observing that we must construe its language having regard to the object and purpose which the legislature had in view In enacting that provision and in the context of the setting in which it occurs his Lordship quoted Judge Learned Hand as under: ...the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear and which are collectively create. 29. In Gramophone Company of India Ltd. Vs. Birendra Bahadur Pandey and Others, (1984) 2 SCC 534 their Lordships dealt with the word 'import' in Section 53 of the Copyright Act, 1957. The word is not defined in the Act and otherwise it is of common parlance. It was held that the same word may mean different things in different enactments and in different contexts. It may even mean different things at different places in the same statute. It all depends on the sense of the provision where it occurs. "Reference to dictionaries" it was observed, "is hardly of any avail, particularly in the case of words of ordinary parlance with a variety of well known meaning. Such words take colour from the context" (p. 553). Much the same thought was expressed in Prem Chand Jain v. R.K. Chhabra 1984 SCC 302 where Ranganath Misra J. agreed with the observation of Lord Somer Veil in (1937) 1 AER. 49 (H.L.) that in ascertaining the true legislative intention the mischief against whole the statute is directed and, perhaps though to an undefined extent, the surrounding circumstances can be considered. Lord Porter spoke to the same effect in the following words; A right construction of the Act can only be attained if its whole scope and object together with an analysis of its working and the circumstances in which it is enacted are taken into consideration. 30. Authoritative texts on interpretation of statutes! are by and large of the same view. 30. Authoritative texts on interpretation of statutes! are by and large of the same view. According to Maxwell, Interpretation of Statutes (12th edition) p. 58, an elementary rule is that construction is to be made of all the parts together, and not of one part only by itself. Individual worse are not considered in isolation, but may have their meaning determined by other words in the section in which they occur. The course which Legislation on a particular point has followed often provides an indication as to how the Act at present in force should be interpreted (P. 64). The court may consider the historical setting and may also consider whether a statute was intended to alter the law or to leave it exactly where it stood before (p. 48) Croons in Statutory Interpretation 1976 regards the context of a statutory provision as including "the whole of the state in which it is contained, title and preamble, if any, as well as the enacting parts; the place occupied by the provision within the statute, other statutes in pari materia, the circumstances in which the statute was passed; and its object." (p. 50), 31. Reed Dicktrson in the Interpretation and Application of Statutes (1975) thus explains the highly significant role of context (at p. 111): An utterance taken out of the specific context that it presupposes is at best inadequately oriented and over general. Not only does the context Unit the normal sweep of primary (semantically) meaning, but it often also selects among the alternative potentialities of primary meaning. The elements of context that perfrom the lattoter function are usually factual assumptions or ethical norms that are either expressly recited in the document or more usually, judicially noticed. They effect meaning by turning the potentialities of multiple, or alternative, primary meanings into the actualities of a single relevant primary meaning. 32. The learned author quotes a passage from an American case to highlight the guideline: The meaning of some words in a statute may be enlarged or restricted in order to harmonize them with the legislative intent if the entire statute....It is the spirit...... of the statute which should govern over the literal meaning. 33. In this direction the principles of interpretation which should guide us were thus summed up by Bhagwati, J. in Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, (1977) 4 SCC 193 . of the statute which should govern over the literal meaning. 33. In this direction the principles of interpretation which should guide us were thus summed up by Bhagwati, J. in Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, (1977) 4 SCC 193 . Now, it is undoubtedly true that where the language of any enactment is plain and clear upon its face and by itself susceptible to only one meaning, then ordinarily that meaning would have to be given by the Court. In such a case the task of interpretation can hardly be said to arise. But language at best is an imperfect medium of expression and a variety of significations may often lie in a word or expression. It has, therefore, been said that the words of a statute must be understood in the sense which the legislature has in view and their meaning must be found not so much in a strictly grammatical or etymological propriety of language, nor In its popular use, as in the subject or the occasion on which they are used and the object to be attained. It was said by Mr. Justice Holmes in felicitous language in Town v. Fisner 245 U.S. 418 that "a word is not a crystal transparent and unchaged; it is the skin of a living thought and may vary greately in colour and content according to the circumstance? and the time in which it is used. "The words used in a statutes cannot be read in isolation; their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context And when I use the word 'context' I mean it in its widest sense "as including not only other enacting provisions of the same statute but its preamble, the existing state of law, other statutes in pari materia and the mischief which the statute was intended to remedy ". The context is of the greatest imorotance in the interpretation of the words used in a statute. The context is of the greatest imorotance in the interpretation of the words used in a statute. "It is quite true "pointed out Judge Learned Hand in Helming v. Gregory 59F (2)(d) 809 "that as the articulation of a statute increases, the room for interpretation must contract; but the meaning of a sentence may to more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all, appear and which all collectively create". Again, it must be remembered that though the words used are the primary, and ordinarily the most reliable source of interpreting the meaning of any writing, be it a statute, or contract, or anything else it is one of the surest indexes of a mature and developed jurisprudence not to make a for trees out of the dictionary, but to remember that a statute always has some purpose or object to accomplish, whose sympathetic and imaginative discovery, is the surest guide to its meaning. The literal construction should not obsess the Court, because it has only prima facie preference, the real object of interpretation being to find out the true intent of the law maker and that can be dote only by reading the statute as an organic whole, with each part throwing light on the other and bearing in mind the rule in Heydon's case 76 ER 637, which requires four things to be "discerned and considered" in arriving at the real meaning; (1) what was the law before the Act was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy Parliament has appointed; and (4) the reason of the remedy. There is also another rule of interpretation which is equally well settled and which seems to follow as a necessary corollary, namely, where the words, according to their literal meaning" produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification. "The Court would be justified in" putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear". Vide River Wear Commissioner v. Adamion (1876) App. Cs. 743,. 34. "The Court would be justified in" putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear". Vide River Wear Commissioner v. Adamion (1876) App. Cs. 743,. 34. Crawford in the Construction of Statutes, (1940) at p. 351 adopts the definition of 'context' from Black where it is said "when we speak of the context, it is not meant merely that different words or clauses in the same sentence must be compared with each other or successive sentences must be read together, But in a wider sense, one section of a statute may stand, as context to another, whether it immediately precedes or follows it or is more widely separated from it, provided it bears upon the same general subject matter. In the author's opinion, "The words, phrases, clauses, sections, sub-sections, provisos, saving clauses, in fact, every part of the statute, must be interpreted with reference to the context. This means that the court in construing a statute cannot isolate words or give them their abstract meaning, or consider the different parts of the statute separately and independently. Even part of the statute separately and independently, even part of the statute must be considered together as an integral part of the whole and kept subservient to the general intent of the whole enactment Fach part or section of the statute subject to construction should be construed in connection with every other part or section, even sections which are invalid or in conflicts. Indeed all of them must be given effect according to the intent expressed or clearly revealed." 35. In the words of Seervali: Constitutional Law of India, Vol. I para 2.19 (Third Ed.): ...the rule of literal construction now stands modified by the principle that words however clear they may appear to be, must be read in the 'context' in which they appear. If they appear in an Act, the whole Act, or the relevant portion of it dealing with the subject in hand must be looked at. And the 'context' includes intrinsic and extrinsic aids to construction. 36. If they appear in an Act, the whole Act, or the relevant portion of it dealing with the subject in hand must be looked at. And the 'context' includes intrinsic and extrinsic aids to construction. 36. In Hanover case (1957) A.C. 436, Lord Simonds affirmed use of 'context' in the widest sense as including "not only other enacting provisions of the same statute but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which...the statute was intended to remedy." Venkatarama Aiyar, J. took the same view in Chamar bauquala's case, AIR 1957 SC 699 . 37. The court cannot, therefore, proceed justifiably to construe the expression 'appointment' used in Section 16 of the U.P. Act 5 of 1982 in isolation from the entire context. In the dictionaries there are various shades of meaning assigned to the word 'appointment' and the choice ultimately rests upon the context. The meaning given inter alia is: Black's Law Dictionary (1979) 5th ed. p. 91: The selection or designation of a person, by a person or persons having authority therefore to fill an office or public function and discharge the duties of the same. Jowilt's Dictionary of English Law (Vol.) (1977) p. 119: Appointant means "a person selected for" a particular purpose; also the person in whose favour a power of appointing is exercised. Websters Third New International Dictionary Vol. I p. 105: Appointee-means "designation of a person to hold a non-elective office or perfrom a function.... Biswas Law Dictionary (2nd ed.) (1982) p. 71 the direction, designation, the selection of a person for an office.... 38. It will be noticed from these definitions that the 'selection' is not foreign and may constitute an element of appointment; The word is used in contra-distinction from election to an office. 'Transfer' is also valiantly defined e.g. Random House Dictionary (p. 1504) "to convey or remove from one place, person etc. to another." to withdraw from one school, college, or the like and enter another, to be moved from one place to another. Black's Law Dictionary (1979)(p. 1342): to convey or remove from one place, person etc. to another. 39. 'Transfer' is also valiantly defined e.g. Random House Dictionary (p. 1504) "to convey or remove from one place, person etc. to another." to withdraw from one school, college, or the like and enter another, to be moved from one place to another. Black's Law Dictionary (1979)(p. 1342): to convey or remove from one place, person etc. to another. 39. From the narration made above of the sequence in which legislation as the subject has proceeded, it is manifest that there has been gradual but steady erosion from the powers which the management enjoyed in the sphere of the appointment of teachers (including the Head of the Institution). Under the Intermediate Education Act, 1921 (as originally enacted) the power and authority enjoyed by private managements of educational institution was left untouched. But there was a comprehensive amendment of the Act by the U.P. Act 35 of 1958 and thereafter by the U.P. Act 26 of 1975. For purposes of selection of Principal or Head master of the institution Section 16-E(3) (as introduced by the U.P. Act 35 of 58) envisaged Selection Commission of three persons (including a member not belonging to the district but selected by the management); the a institution of the Selection Committee thus lay in the hands of the management and not an extraneous agency. The U.P. Act 26 of 1975 brought in changed composition of the Selection Committee (vide Section 16-(F) providing that to select the Head of an institution, it shall comprise of the President of the Committee of Management, another member of the management and three experts nominated by the Deputy Director from the panel. This was an innovation. Fore significant than this was the fact that earlier the Selection Committee deputed by the management could base its recommendation upon the assessment made on holding the interviews but with the substitution of Section 16-E and the new Regulations under the 1975 (Amendment) Act, there came in the requirement of allocation of quality point marks by the Inspector on all such applications and the Selection Committee's assessment was further regulated/ restricted to that extent. This in short was the existing state of law regarding the appointment by selection when the U.P. Act 5 of 1982 preceded by the U.P. Ordinance 8 of 1981 came into being. This in short was the existing state of law regarding the appointment by selection when the U.P. Act 5 of 1982 preceded by the U.P. Ordinance 8 of 1981 came into being. The mischief which the legislature had in mind and sought to mitigate in this realm of selection for appointment is made vocal in the Statement of Objects and Reasons (quoted above). "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." It is well settled that it is permissible to refer to the Statement of Objects and Reasons accompanying the Bill for the purpose of understanding the background the antecedent, state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy Narain Khamman Vs. Parduman Kumar Jain, (1985) 1 SCC 1 . The Commission was constituted, therefore, to select and made available suitable candidates. There is little room to doubt that all this pertains to the initial selection for the appointment the situation wherein a candidate is screened through the medium of the Selection Committee to be designated or appointed as teacher of a particular institution. This does not, in other words, cover a case where a person has been working already though in another institution as the Principal or Head master, as the case may be. Instead of the Selection Committee constituted under the law (as it was pior to July 14, 1981), the selection is intended thereafter to be by the Commission under the new Act and its recommendation binds the management. 40. So far as the Head of an institution is concerned, the selection envisaged is, as a general rule, by direct recruitment. This was so provided in Regulation 16 under the U.P. Act 35 of 1958 and it is maintained u/s 16-E(2) read with regulation 2(Chapter II) brought after the 1975 Act. Where, however, an institution is raised from a High School to an Intermediate College the post of the Principal shall be filled by the promotion of the Headmaster. In case of other teachers, the appointment to the extent of 40% is by promotion to the Lecturer's grade/L.T. grade from the L.P. Grade/C.T. grade as the case may be (Regulation 5(2) Chapter II). In case of other teachers, the appointment to the extent of 40% is by promotion to the Lecturer's grade/L.T. grade from the L.P. Grade/C.T. grade as the case may be (Regulation 5(2) Chapter II). In the matter of appointment by promotion also the Selection Committee was earlier the recommending body and the statement of Objects and Reasons intends to substitute the Commission for this purpose too. 41. A consideration of the entire scheme of the U.P. Act 5 of 1982(and the rules framed thereunder) abundantly fortifies the inference that in the sphere of appointment the Commission has been constituted to make selection and give its recommendation for appointment by direct recruitment or by promotion, and not through any mode other than these two. This accords with the mischief sought to be remedied as reflected by the statement of Objects & Reasons appended to the Act and the marginal headings are pointer in the same direction. The Commission has also been entrusted powers in regard to disciplinary control over the teachers in replacement of the Inspector; that too is provided for in the Statement of Objects & Reasons besides the text of the Act, but this aspect need not detain us since that falls outside the purview of the dispute referred to this larger Bench. 42. Under the scheme of this new Act the Commission is entrusted with the task- (i) to select candidates for appointment as teachers (including Head of the institution) by direct recruitment as per Section 10(2) read with Rule 6. The Commission draws the panel after holding the interviews vide Section 11/Rule 7. In respect of the post of the Head of an institution, the Commission is required also to call for interview two seniormost teachers of the institution; (ii) to select candidates for appointment as teachers by promotion as per Section 10(2) read with Rule 9. 43. This indeed is the pith and substance of the provisions of the Act 5 of 1982 read with the Rules leaving aside the aspect of disciplinary control which are not relevant for purposes of these proceedings and the provisions concerning ad hoc appointments to which reference shall be made later. 43. This indeed is the pith and substance of the provisions of the Act 5 of 1982 read with the Rules leaving aside the aspect of disciplinary control which are not relevant for purposes of these proceedings and the provisions concerning ad hoc appointments to which reference shall be made later. The outstanding features of the Act in this behalf significantly are: (1) The selection for appointment whether by direct recruitment or by, promotion made 'under the provisions in force prior to July 14, 1981, is left untouched; there is nothing contained in the new Act expressly or by implication to infer that that selection is for any reason made invalid or inoperative; and (2) Those selected before July 14, 1981, either for direct recruitment or promotion are not required to be screened or to undergo any kind of further selection in order to continue as teachers; none of such appointments is rendered invalid or inoperative from anything contained in this Act or the Rules framed thereunder. 44. Considered in the light of the discussion made thus far there can be no denial that the expression 'every appointment' appearing in Section 16 is confined in its scope to selection for fresh or initial appointment either directly or by promotion. It is in this respect that the Commission Is constituted and given powers under the Act. The scope of the powers and duties of the Commission does not extend, in other words, to removing a teacher from one institution and taking him in another under the conditions of service of teachers; the Commission does not at all come in the picture where this is resorted to and as to whether this power survives cannot be legitimately, claimed to be negatived on the strength of Section 16. 45. The Petitioners learned Counsel argued strenuously that the provision for transfer contained in Section 16-G(2)(c) read with Regulations 59 to 69(Chapter III) should be regarded as of appointment. The contention of Sri A.P. Singh is that these provisions should now be held inoperative and ineffective in face of Section 16 of the U.P. Act 5 of 1982. The contention does not bear scrutiny. The contention of Sri A.P. Singh is that these provisions should now be held inoperative and ineffective in face of Section 16 of the U.P. Act 5 of 1982. The contention does not bear scrutiny. Section 16-E/16-F introduced by the U.P. Act 35 of 1958 deal with the "Appointment of teachers" while Section 16-G concerns "Conditions of service of teachers", Sub-section (1) of Section 16-G provided that every person "employed" in a recognised institution shall be governed by such conditions of service as may be prescribed. Care was taken by the legislature to provide in particular under Clause (c) of Sub-section (2) for "transfer of service from one recognised institution to another as one of the conditions of service. There is force in the contention of Sri S.C. Budhwar, learned Counsel for the Respondents, that the legislature was conscious of the treatment accorded to selection for appointment u/s 16-E/F on the one hand and to transfer as a condition of service on the other. These provisions (including the Regulations dealing with transfer) bad a long tenure and remained effective for nearly 16-17 years during 1958-1975. Comprehensive amendment of the Act was done by the U.P. Act 26 of 1975; Section 16-G dealing with the conditions of service was not spared either but conspicuously the provision contained in Section 16-G(2)(c) was retained undisturbed and in tact. On the other hand Section 16-E brought by 1975 Act relates to the "Procedure for selection of teachers and head of institution" and Section 16-F concerns the composition of "Selection Committee". The entire scheme thus speaks adequately of dichotomy observed under the Act as between appointment through Selection (direct recruitment and promotion) on the one side and transfer as a condition of service on the other. In abstract one might say that even where 'A' transferred to a different institution he is appointed over there but the question is whether the Act treats these at par for all purposes. The legislature has, it would appear, denoted by the use of the expression appointment" the selection (direct recruitment or promotion) through the medium of recommender body and the word "transfer" is used in the context of a condition of service governing the appointees in the manner prescribed in Regulations 59 to 62 without involving in the process any Selection Committee. The legislature has, it would appear, denoted by the use of the expression appointment" the selection (direct recruitment or promotion) through the medium of recommender body and the word "transfer" is used in the context of a condition of service governing the appointees in the manner prescribed in Regulations 59 to 62 without involving in the process any Selection Committee. There is no evidence of departure from this arrangement or scheme under the new Act except the high power Commission now acts instead of Selection Committee composed of the management. 46. There is high authority, it also appears, as Sri Budhwar submits, to support that 'appointment' and 'transfer' can be regarded as not necessarily synonymous or overlapping. In the proviso (c) to Article 217(1) of the Constitution, the provision is that "the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India." Article 222(1) deals with "Transfer of a Judge from one High Court to another" and says that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court and also that on being so transferred the Judge Is entitled to receive compensatory allowance. In connection with the elevation of the Judge of a High Court to the Supreme Court, the expression used is "appointed", but in relation to his being taken to another High Court from where he was earlier appointed, the word employed is "transferred". In the Judges' case S.P. Gupta Vs. President of India and Others, AIR 1982 SC 149 the Supreme Court by majority (Fazal Ali, Tulzapurkar, Desai, Venkataramiah, JJ.) held that the transfer of Judge of the High Court to another High Court was not fresh appointment. The majority view in this behalf taken in Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another,(supra), was re-affirmed. It was held that the Constitution has itself brought out a clear distinction between transfer and appointment (see para 287 at p. 396). Depending on the context, therefore, it is possible under the law to treat 'appointment' by selection (direct recruitment and promotion) distinct from 'transfer' and there is nothing inherently against such statutory treatment. 47. It was held that the Constitution has itself brought out a clear distinction between transfer and appointment (see para 287 at p. 396). Depending on the context, therefore, it is possible under the law to treat 'appointment' by selection (direct recruitment and promotion) distinct from 'transfer' and there is nothing inherently against such statutory treatment. 47. It was argued by Sri A.K. Sharma on the Petitioners side that the appointment of the teacher in an institution originates in contract. Section 16-G, it is added, provides that a person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulation and any agreement between the management and such employ is so far as it is inconsistent with the provisions of this Act/the Regulations shall be void but the agreement so far as it is not in conflict with the Populations will still continue to hold good and on this premise the submission is that to direct a teacher to serve in an institution other than that where he was initially appointed would be contrary to the contractual relationship. In this connection it is high-lighted that there is no common cadre of service; that the Committee of Management are different and that the employer would change. The attack on this basis suffers from basic fallacy, despite there being no common cadre of service and even though there is the inevitable change of employer, Section 16-G(2)(c) provdies, it may not be overlooked, for "transfer of service from one recognized Institution to another". This is not a delegated piece of legislation; the legislature enacted this in its wisdom under the U.P. Act 35 of 1958 and the vires of Section 16-G(2)(c) is not challenged before us on any other ground either. The transfer in such a case is consequently in exercise of statutory powers, due to being inconsistent of the agreement will to that extent stand subrogated as a result of the statutory provision enabling transfer. 48. The decisions cited by Sri Sharma in support of the point that he canvassed in this behalf are of no assistance. The transfer in such a case is consequently in exercise of statutory powers, due to being inconsistent of the agreement will to that extent stand subrogated as a result of the statutory provision enabling transfer. 48. The decisions cited by Sri Sharma in support of the point that he canvassed in this behalf are of no assistance. In The Manager Pyare Chand Kesarimal Pomar Bidi Factory v. Onkar Laxman Thenge AIR SC 823 it was held that as a general rule a contract of service being incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement. The position obtaining under the law was at the same time stated on page 826 to be that except in the case of a statutory provision to the contrary, a right to the service of an employee cannot be the subject matter of a transfer by an employer to a third party without the employees' consent. The instant is a case of statutory provision. In The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, AIR 1968 SC 529 their lordships referred to an English case Noket v. D.A. Collieries Ltd. 1940 AC 1014 which held that the benefit of a contract entered into by 'A' to render personal service to 'X' cannot be transferred by 'X' to 'Y' without A's consent. In that case too no statutory provision was involved. The Rules under consideration in V.V.V. Satyanarayana Vs. G. Ramachandra Naidu and Others, (1975) 3 SCC 175 specifically provided for appointment through provision of by transfer and there was no controversy on the point of their being treated differently. In the unreported case of Jalgaon Zila Perished v. Duman Govtnd etc. CA 24/25 of 1968 dt. 20-12-63 SC also cited by Sri Sharma the finding on facts thereof was that on transfer and allocation of the kotwals to the service of Parishads, there was by operation of law termination of their services with Government and they became employees in class III service of the Zila Parishads. They could not thereafter be regarded as Government employees governed by the rules. That would have no application whereas, in the present case, the change in relationship brought about is in conformity with statutory rules. 49. In Oriental Metal Pressing Works (P.) Ltd. Vs. They could not thereafter be regarded as Government employees governed by the rules. That would have no application whereas, in the present case, the change in relationship brought about is in conformity with statutory rules. 49. In Oriental Metal Pressing Works (P.) Ltd. Vs. Bhaskar Kashinath Thakoor and Another, AIR 1961 SC 573 in a different context where the Director of a company made assignment of his office and the question was whether this amounted to appointment the Supreme Court observed that unlike transfer an appointment has nothing to do with anything passing from one to another and that the act constituting a transfer and an appointment are wholly dissimilar. The observations made by a Full Bench of the Gujrat High Court in A.J. Patel v. State of Gujrat AIR 1965 Guj. 23 relied by Sri Budhwar are apposite. Referring to the particular Article therein it was said that: ...rules relating to the recruitment of persons to public services and posts are distinct from rules relating to the conditions of service. The conditions of service are conditions applicable to persons who have been appointed to public services and posts. The terms and conditions relating to recruitment and relating to appointment to public services and posts must, therefore, be regarded as distinct and different from the conditions of service governing persons on their appointment to public services and posts. 50. Regulations 55 to 62 (Chapter HI) placed under the caption of "Transfer from one Institution to another" owe their genesis to Section 15-C(2)(c) and are aimed evidently to implement the same. Capital cannot be made for the Petitioners to the deletion of Regulation 58 by notification of the State Government published on 2-12-1975. That cannot be claimed to have made any dent material for purposes of the point in controversy. The provision contained in this Regulation 58 was: As soon as a substantive vacancy or a temporary vacancy likely to be made permanent which is to be filled by direct recruitment is advertised, the Manager shall send a copy of the advertisement along with particulars mentioned at 'A' in Regulation 17 of Chapter II to the Inspector of Regional Inspectrees as the case may be. The Inspector or Regional Inspectress will promptly arrange with the Management to see whether the vacancy can suitably be filled by one of the Applicants for transfer. The Inspector or Regional Inspectress will promptly arrange with the Management to see whether the vacancy can suitably be filled 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. 51. The only effect of the omission thereof is that the Inspector does not have to enquire of the Management if the vacancy is intended to be filled in by transfer from one Institution to another. The initiative is left to the respective Committee of Management in this behalf. The noteworthy fact is that under the same notification published on 2-12-75 there has been substitution of Regulation 59. Earlier this Regulation which read as under did not require permission in writing from the Inspector: The transfer of an employee will be permissible subject to the conditions that (i) the Management of the institution where the Applicant is serving is willing to release him and (ii) the Management of the new institution to which the Appellant has applied for transfer is willing to accept him. Provided that the transfer application of a person against whom disciplinary enquiry is pending shall not be considered. Provided further that an employee shall be allowed in the new institution the same salary as he was drawing in the former institution. 52. But now since Inspector's permission is made a pre condition to transfer, it was considered meaningless to retain the earlier provision of Regulation 58 requiring intimation from the Inspector to the Management. The transfer does not constitute a break in the continuity of probation; the transferee is entitled to benefit of this period for purposes of confirmation in the institution to which he is sent (Regulation 15). Regulation 59-A details other consequences upon transfer including that service rendered in the institution front which he is transferred shall be deemed to be services rendered under the institution to which he is transferred. It is true that the institution to which the teacher is transferred issues an order of 'appointment' to him vide Regulation 60 par with appointment dealt with in Sections 16-E/16-F or Section 16 of the U.P. Act 5 of 1982 for that matter. Whereas those provisions are concerned with initial or fresh appointment as teacher, the Regulation pertain to transfer of lien from one institution to which he already stands appointed to another. Whereas those provisions are concerned with initial or fresh appointment as teacher, the Regulation pertain to transfer of lien from one institution to which he already stands appointed to another. The distinction thus existing is not blurred. 53. For all these reasons, it is clear that provisions for transfer from one institution to another is made in Section 16-G(2)(c)/Regulations 55 to 62 as an exigency of service and is not identified with initial or fresh appointment that is the subject matter of Sections 16-E/16-F. In the context, 'appointment' in Section 16 of the new Act denotes initial or fresh appointment-direct or by promotion that involves element of selection and not mere transfer of one who is appointed already though in a different institution. 54. Assuming as the Petitioners contend that transfer of a teacher from one institution to another is also a mode of appointment, the question next arising is whether in view of Section 32 of the U.P. Act 5 of 1982 the provision contained in Section 16-G(2)(c)/Regulations 55 to 62 still survive as effective. The argument for the Respondents in the alternative is that there exists no inconsistency between Section 16 of the new Act on the one hand and Sections 16-G(2)(c)/Regulations 55 to 62 on the other. Section 16-G or the Regulation made thereunder have not been repealed under the new Act. Section 32 of this Act enacts for continued applications of the provisions of the Intermediate Education Act except to the extent they are inconsistent. Even u/s 16 the non obstinate clause rules out, 'anything to the contrary' contained in the 1921 Act. Cannot Section 16-G(2)(c)/Regulations 55 to 62 stand together with what is provided for by the U.P. Act 5 of 1982? Section 32 does not cither expressly or by implication repeal any other provision of the Intermediate Education Act; neither does it abrogate them. The object is to by pass them where and to the extent they are inconsistent with, what is laid in the new Act See: Harishankar Bagla and Another Vs. The State of Madhya Pradesh, AIR 1954 SC 465 . What is void under Sub-section (2) read with Sub-section (1) of Section 16 is not the entire content of Section 16-G (2) but only to the extent that runs contrary to or is repugnant to what is now provided for Servui, Constitution of India (Vol. 1)(3rd Edition) p. 249. The State of Madhya Pradesh, AIR 1954 SC 465 . What is void under Sub-section (2) read with Sub-section (1) of Section 16 is not the entire content of Section 16-G (2) but only to the extent that runs contrary to or is repugnant to what is now provided for Servui, Constitution of India (Vol. 1)(3rd Edition) p. 249. The identity of the field should relate to the pith and substance of the subject matter Zaverbhai Amaidas Vs. The State of Bombay, AIR 1954 SC 752 . The important thing to considers with reference to this proposition is whether the legislation is in respect of the same matter. If both laws can be obeyed without disobeying any, there is no conflict Ram Chandra Mewa Lal Varanasi v. State of U.P. (1984) 10 ALR 539 SC. 55. Upon a survey made of the relevant provisions referred to above the conclusion is irresistible that under the U.P. Act 5 of 1982 the Commission has replaced the Selection Committee; its composition is different the powers are wider; the procedure prescribed for selection is fairer and capable to import greater efficiency. The powers of the management have been to that extent curtailed But with all this the Commission does not came in the picture where there is transfer of a teacher from one institution to another. The selections held earlier, as stated, retain their validity and are not impinged. No fresh screening is contemplated. There is no element of selection in effecting transfer of erstwhile appointees as part of their conditions of service. In pith and substance the provisions of the new Act are attracted, in so far as appointment is concerned. Where there is direct recruitment to fill in a post or consideration to appoint by promotion, and not in relation to transfer, the appointees through the medium of the Commission also are not immune from the obligations of conditions of service; it does not appear that subsequent to the appointment they may not be transferred from one institution to another. The right of the two senior most teachers of the institution to be considered for promotion as Head of the institution is not absolute; it is available on assumption and in the event of appointment to the post taking place by direct recruitment. The right of the two senior most teachers of the institution to be considered for promotion as Head of the institution is not absolute; it is available on assumption and in the event of appointment to the post taking place by direct recruitment. If due to an exigency of service transfer if an appointee from another institution takes place, that cannot be defeated to give effect to what is at best a contingent right. In accordance with Section 10 the management no doubt notifies the vacancy to the Commission and the machinery is set in motion, but where a teacher is brought in by transfer that can only be classed as a supervening event which is not in conflict with the subject matter of the new Act that neither abrogates nor abandons the provisions for transfer. Not merely the Regulations framed in this behalf have lived during 19-8-1975, there has been amendment to some of these by the State Government even recently by notification published on February 1, 1983 thereby treating them as operative. There is no direct conflict nor is the impugned Act exhaustive. The Intermediate Education Act remains occupied of the field not covered by the subsequent legislation. 56. In Section 32, argued learned Counsel for the Petitioners, there is mention expressly made of purposes namely, selection, appointment, promotion, dismissal, retrieval, termination or reduction in rank of a teacher in respect of which provisions of the Intermediate Education Act which are not inconsistent have been retained. 'Transfer' however, is not referred to and hence it was urged that provisions concerning the same are abrogated. The list cannot be treated as exhaustive nor can these words be held to exclude things which are incidental or ancillary to what is not inconsistent. The Regulations, for instance, contain detailed provisions for suspension and retirement on attaining the age of super-annotation. It cannot be said that those provisions have ceased to apply because they are not specifically categorised. This equally hold good concerning the provisions for transfer. 57. The matter may be considered from another angle also. Statutory provision is not to be rejected as inconsistent without earnest endeavour to reconcile what may on superficial view appear to be conflicting. The effort of the court is to make every part effective, harmonious and sensible. Failure to do is likely to defeat the legislative intent. 57. The matter may be considered from another angle also. Statutory provision is not to be rejected as inconsistent without earnest endeavour to reconcile what may on superficial view appear to be conflicting. The effort of the court is to make every part effective, harmonious and sensible. Failure to do is likely to defeat the legislative intent. "The legislative intent is just as apt to bi lost where a word, phrase or sentence of the statute is rejected as where they are considered separate and apart from the rest of the statute" Crawford: The Construction of Statutes, p. 261. In M. Karunanidhi Vs. Union of India and Another, (1979) 3 SCC 431 , Fazal Ali J. in the context of Article 254 of the Constitution propounded following conditions as pre-requisite to be satisfied before any repugnancy can arise: (1) That there is a clear and direct inconsistency between the Central Act and the State Act; (2) That such an inconsistency is absolutely irreconcilable. (3) That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reaching where it is impossible to obey the one Without disobeying the other. 58. In case the two Acts are of the same State Legislature the need to establish clear and direct inconsistency cannot but be regarded as imperative. The decision in Rameshwar Prasad and Others Vs. State of Uttar Pradesh and Others, (1983) 2 SCC 195 relied by the learned Counsel Sri A.P. Singh rests on a clear case of departure from the amended statutory provisions of the Motor Vehicles Act, 1939 in issuing notifications for grant of permits. In that case too the well settled rule of construction of statutes that whenever a court is called upon to interpret an amended provision it has to bear in mind the history of the provision, the mischief which the legislature attempted to remedy, the remedy provided by the amendment and the reason for providing such remedy was reiterated. The dominant theme, of the impugned U.P. Act 5 of 1982 considered on its Contents, the Statement of Objects and Reasons, the marginal headings in its proper context furnishes intrinsic evidence that provisions for selection (direct or by promotion) can stand together with those of transfer from one institution to another. The dominant theme, of the impugned U.P. Act 5 of 1982 considered on its Contents, the Statement of Objects and Reasons, the marginal headings in its proper context furnishes intrinsic evidence that provisions for selection (direct or by promotion) can stand together with those of transfer from one institution to another. The Petitioners cannot jus affably claim to have established that there are irreconcilable. 59. Sri A.K. Yog learned Counsel on Petitioners behalf made reference to radiogram dated April 1, 1981 (issued on April 7, 1981) from the Government of U.P. Education Department which said- 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 order (. ) District Inspectors to ensure non-drawal of pay of teachers appointed after this date (. ) Detailed instructions follow (. ). 60. The validity of this radiogram and the effect thereof came in question in Ramji Dwivedi v. State of U.P. 1983 EC 114. It appears the post of Principal had been advertised in 1980. The Selection Committee as envisaged by Section 16-F held the interview on 12-4-1981. The Appellant was selected. Letter of appointment was issued to him on 27th April 1981. Charge was assumed on 1st May, 1981. The management did not pay salary to him though he functioned as principal. The writ petition filed by him was dismissed by this Court which held that the radiogram contained an order of Stale Government in discharge of its executive functions suspending or withdrawing power of appointment of teaching staff including principal and therefore the Committee of Management of the College had no power to set up a Selection Committee nor the Selection Committee had any power to make any appointment and therefore, the appointment of the Appellant alleged to have been made on 1st May, 1981 was not valid. The Supreme Court affirmed this decision. The view taken was that the State Government has power u/s 9(4) of the Intermediate Education Act to make, modify or rescind any regulation and the effect of the order conveyed, by the radiogram would be to rescind the regulation conferring power on the management to make appointment and withdraw and/or suspending power of appointment of Principal and teachers. The view taken was that the State Government has power u/s 9(4) of the Intermediate Education Act to make, modify or rescind any regulation and the effect of the order conveyed, by the radiogram would be to rescind the regulation conferring power on the management to make appointment and withdraw and/or suspending power of appointment of Principal and teachers. In consequence the Selection Committee had no right to select the Appellant nor the Committee of Management had any power to make the appointment. The argument advanced by Sri Yog is that this radiogram is suggestive of the intention of the State Government to stop all sorts of appointments and the decision should help to conclude that transfer also stands prohibited. It is difficult to agree to this proposition. The case was of direct appointment; the State Government having issued a directive to the contrary (which was found to be covered by Section 9(4) it did not remain open to the management to constitute a Selection Committee or for the management to issue appointment on the strength of its recommendation subsequent to the order contained in the radiogram coming into force. Transfer was not in issue in that case in any shape or form. The radiogram significantly qualified the expression 'selections and appointment' by the word 'fresh'. The language used in the radiogram therefore, does not bear out the intention which the learned Counsel seeks to canvass besides the fact that the true legislative intent is gathered from the appropriate context. 61. Reliance for the Petitioners was placed then on the Removal of Difficulties Orders, 1981 issued by the State Government in exercise of powers u/s 33 of the impugned Act. Section 33 reads as follows: 33(1) The State Government may, for the purposes of removing any difficulty, by a notified order, direct that the provisions of this Act shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as it may deem to be necessary or expedient; Provided that no such order shall be made after two years from the date of commencement of this Act. (2) Every order made under Sub-section (1) shall be laid before both the Houses of State Legislature. (2) Every order made under Sub-section (1) shall be laid before both the Houses of State Legislature. (3) No order under Sub-section (1) shall be called in question in any Court on the ground that no difficulty as is referred to in Sub-section (1) existed or required to be removed. 62. Sri Budhwar contends that Sub-section (3) of Section 33 suffers from excessive delegation. He has in this connection referred to the decision of the Supreme Court in Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, AIR 1967 SC 691 . The question in that case was Section 37 of the Payment of Bonus Act, 1965 which read as under: If any difficulty or doubt arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provision, not inconsistent with the purposes of the Act as appears to it to be necessary or expedient for the removal of the difficulty or doubt; and the order of the Central Government, in such cases shall be final. "The view taken was that the section authorises the Government to determine for itself what the purposes of the Act are and to make provisions for removal of doubts of difficulties. If in giving effect to the provisions of the Act any doubt or difficulty arises, normally it is for the Legislature to remove that doubt or difficulty. Power -to remove doubt or difficulty by altering the provisions of the Act would in substance amount to exercise of legislative authority and that cannot be delegated to an executive authority. That part of Section 37 which made the order of the Central Government in such cases final, it was held, accentuates the vice since" by enacting that provision the Government is made the sole judge in giving effect to the provisions of the Act, whether it is necessary or expedient to remove the doubt or difficulty and whether the provision enacted is not inconsistent with the purpose of the Act. 63. The question arose in reference to Section 34 of the Contract Labour (Regulation and Abolition) Act, 1970 in Gammon India Ltd. and Others Vs. Union of India (UOI) and Others, (1974) 1 SCC 596 upon which Sri A.K. Sharma, learned Counsel on the Petitioners side, relies. The section is differently worded as would appear from the following: 34. 63. The question arose in reference to Section 34 of the Contract Labour (Regulation and Abolition) Act, 1970 in Gammon India Ltd. and Others Vs. Union of India (UOI) and Others, (1974) 1 SCC 596 upon which Sri A.K. Sharma, learned Counsel on the Petitioners side, relies. The section is differently worded as would appear from the following: 34. Power to remove Difficulties: If any difficulty arises in giving effect to the provisions of this Act, the Central Government, by an order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for removing the difficulty. 64. The Constitution Bench speaking through Ray, C.J. (as he then was) distinguished the observation appearing in Jalan Trading Co. (Supra) and made the following comments: Section 34 of the Act was challenged as unconstitutional, Section of the Act provides that if any difficulty arises in giving effect to the provisions of the Act, the Central Government may, by order, published in the official gazette, make such provision not inconsistent with the provisions of the Act as appears to it to be necessary or expedient for removing the difficulty. Reliance was placed by Petitioners on the decision of this Court in Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union,(supra). Section 37 of the Act in that case authorised the Government to provide by order for removal of doubts or difficulties in giving effect to the provisions of the Act. This Court held that it is for the legislature to make provisions for removal of doubts or difficulties. The section in that case contained provision that the order must not be inconsistent with the purposes of the Act. Another provision in the section made the order of the Government final. This Court held that in substance there was the vice of delegation of legislation to executive authority. Two reasons were given. First the section authorised the Government to determine for itself what the purposes of the Act were to make provisions for removal of doubts or difficulties. Secondly, the power to remove the doubts or difficulties by altering the provisions of the Act would in substance amount to exercise of legislative authority and that could not be delegated to an executive authority. Secondly, the power to remove the doubts or difficulties by altering the provisions of the Act would in substance amount to exercise of legislative authority and that could not be delegated to an executive authority. In the present case, neither finality nor alteration is contemplated in any order u/s 34 of the Act. Section 34 is for giving effect to the provisions of the Act. This provision is an application of the internal functioning of the administrative machinery. Difficulties can only arise in the implementation of rules. Therefore, Section 34 of the Act does not amount to excessive delegation. 65. Upon comparison it would be noticed that the words "the order of the Central Government in such cases shall be final" appearing in Section 37 of the Payment of Bonus Act, 1965 are not to be found in Section 34 of the Contract Labour (Regulation and Abolition) Act, 1970. Sub-section (3) of Section 33 of the U.P. Act 5 of 1982, under consideration before us, however, provides for finality on the question whether difficulty, as referred to in Sub-section (1), exists or is required to be removed. This may render the provision vulnerable to attack though in the present we are not required to express opinion finally in regard to vires of this provision. In the light of the observations made in M/s. Gammon India Ltd. (Supra) there may be no denial that an order that falls within the purview of Section 33 is confined to resolve or remove any difficulty that may arise in implementation of the Act. It is not permissible to let it transgress the limits of the Act. Since Section 16-G(2)(c) read with the Regulations provide for transfer of teachers from one institution to another and these provisions survive despite the enforcement of the U.P. Act 5 of 1982, their effect cannot legitimately be claimed to have been taken away by any thing contained in the orders issued in exercise of powers u/s 38 intended to remove difficulties. 66. Upon the setting up of the Commission there was bound to be some time lost before the Commission could make its recommendation on completing the exercise contemplated in the Act/Rules. Vacancies may continue to arise in the meantime. 66. Upon the setting up of the Commission there was bound to be some time lost before the Commission could make its recommendation on completing the exercise contemplated in the Act/Rules. Vacancies may continue to arise in the meantime. In order that the interest of the educational institutions does not suffer for lack of teachers and in the case of a Principal or Head master retiring, they are not rendered topless, the State Government has found it necessary to issue these Removal of Difficulties Orders. There are steps to implement the Act and not designed in any manner to run counter to it or to be inconsistent with anything provided for in the Act. The appointment of ad hoc teachers is envisaged by Section 18 also. Para (2) of the First Removal of Difficulties Order, 1981 (as substituted by para (5) of the Second Removal of Difficulties Order, 1981) provides that the management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the case of a substantive vacancy existing by death, retirement, resignation or otherwise. Para (3) of the First Removal of Difficulties Order, 1981, makes it clear that any such appointment shall cease to have any effect when the candidate recommended but the Commission joins the post or when the period of six months from the date of such ad hoc appointment expires whichever is earlier. This evidently, therefore, is by way of purely a stop gap arrangement to fill in the interregnum These Orders do have their sanctity and are operative but subject to their not transgressing the Act. Filling in of vacancy by the surviving provisions relating to transfer is not rendered invalid these Orders notwithstanding. 67. Learned Counsel for the Petitioners further submitted that the managements of various institutions might, by adopting multifarious devices, negative the implementation of the U.P. Act 5 of 1982 in its true spirit. There might be, it is apprehended, appointments given by the managements to candidates of their liking on a large scale and this may reduce the functioning of the Commission to mere paper transaction. There might be, it is apprehended, appointments given by the managements to candidates of their liking on a large scale and this may reduce the functioning of the Commission to mere paper transaction. The salutary object behind the creation of the Commission designed to put a curb on nepotism and unfairness in the matter of appointments of teachers, and thereby the promotion of greater efficiency in the field of education may in that event remain an idle dream. The provisions regarding transfer in the instant case have, as their object, relief to teachers faced with personal or domestic problems or on compassionate grounds and these are accompanied with certain safeguards. These are not designed to operate as acts of harassment through unilateral acts of the management nor do they aim at enabling the management to pack up the staff with teachers of its choice. Under the prescribed procedure the teacher puts in application seeking his transfer wherein he specifies the reasons thereof. The applications are registered in the Inspector's office. The transfer cannot materialize unless the Committees of Management at both ends concur in the proposal and, further, there is the seal of approval appended to this by the Inspector who is supposed undoubtedly to apply his mind and weigh keeping in view the over all public interest in the advance of education whether the cause for transfer is just and such as inspires condolence. If the transfer does take place, the tenure, the remuneration and other conditions of service are not adversely affected; the period of service rendered earlier continues to count for all practical purposes and the period spent on probation is also treated as valid. It is true that despite these precautions taken, the chances for certain managements to indulge in abuse of powers and maneuver to import candidates and to their liking in preference to those serving in the institution already may not be entirely ruled out. The question remains whether this may legitimately constitute in itself the basis to strike down the statutory provisions as inoperative. There is nothing that might be classed as inherently immoral or unjust or against the public policy in these provisions, the evil may creep in their not being duly observed. If that be so, the person affected is not without his remedy. There is nothing that might be classed as inherently immoral or unjust or against the public policy in these provisions, the evil may creep in their not being duly observed. If that be so, the person affected is not without his remedy. In case it were to appear that the managements have acted in collusion or that there is no due discharge of his function by the Inspector or the procedure prescribed has not been observed, the necessary consequences are bound to follow. An act that lacks in bonfires or transpires to be a camouflage in an attempt to contravene the Act always remains open to attack. As at present, we do not enter upon merits into the facts of any case under reference and hence refrain from expressing any opinion on that aspect. Suffice it may to say that if there is abuse of power in some case the order may on that account fail; there cannot, however, be on that footing a blanket ban put against these statutory provisions which survive otherwise and which the Legislature in its wisdom has not chosen to rescind. The principle is well settled that the bare possibility that the power may be misused or abused cannot per se induce the court to deny the existence of the powers. R.K. Dalmia AIR 1958 SC 538 at p. 551. If the order Impugned proceeds on extraneous consideration or is aimed to serve an ulterior purpose, the Court is not powerless to tear the veil and decide according to the real nature thereof Kesavancmda Bharati (1973) 4 SCC 225 at p. 725. 68. Faced with these difficulties Sri A. P. Singh, the learned Counsel, mooted a suggestion that transfer may continue to be given effect to but only (sic) murual. The reasoning advanced by him in support of this submission is that in that event it would not be filling in of a vacancy and therefore it would not amount to appointment or be on that account in contravention of Section 16 of the U.P. Act 5 of 1982. The fallacy behind this argument seems manifest. There can be no denial that vacancy arises even where a transfer is mutual; it may be of short duration or might be prolonged but that is not the deciding factor. The fallacy behind this argument seems manifest. There can be no denial that vacancy arises even where a transfer is mutual; it may be of short duration or might be prolonged but that is not the deciding factor. The true reason why filling in the post by transfer is not appointment u/s 16 is not that vacancy does not arise, but that to bring in an appointee from the institution to another does not involve the process of fresh selection. Neither Section 16-G(2)(c) nor the Regulations 55 to 62 talk of mutual transfer; as such the court would not substitute for that Legislature a new mechanism such as it may consider as prudent Sri A.K. Yog, learned Counsel for the Petitioners, did not advisedly find it possible to adopt this line of argument put forward by Sri A. P. Singh. 69. For the Petitioners the chief reliance placed has been on the decision of the Division Bench in Har Swoop Misra v. State of U.P. (1978) 4 ALR. 215. U.P. Act 26 of 1975 made innovations, as referred to above, in the matter of selection and appointment of teachers. In Section 22 of that Act there was provision made to the effect that if any difficulty arose in giving effect to the provisions of the Act, the State Government may by order not inconsistent with the provisions of the Act, remove the difficulty. Since the implementation of the provisions in the Act may have taken time, the State Government came up with various Removal of Difficulties Orders in exercise of powers u/s 22. The Petitioner was appointed Assistant Teacher on ad hoc basis under the Removal of Difficulties Orders. The tenure of these orders was extended by the State Government from time to time until May 20, 1977. In the meantime the U.P. Ordinance 5 of 1977 was promulgated on April 21, 1977 which made provision for regularisation of appointment of ad hoc teachers. This Ordinance 5 of 1977 was replaced by U.P. Act 5 of 1977 and Section 16-GG (contains the provision for regularisation of appointment of such ad hoc teachers. While the Petitioner in that case continued as an ad hoc appointee, the Respondent was brought in by transfer. This Ordinance 5 of 1977 was replaced by U.P. Act 5 of 1977 and Section 16-GG (contains the provision for regularisation of appointment of such ad hoc teachers. While the Petitioner in that case continued as an ad hoc appointee, the Respondent was brought in by transfer. The question arose whether on this account the vacancy had been filled in and whether despite this the Petitioner could under the Removal of Difficulties Orders claim to remain in service after a regular appointment to fill in the vacancy had been made. The Division Bench answered this in the negative, being of the view that the object underlying the Removal of Difficulties Order was to enable the management of educational institution to make stop gap arrangement by appointment of teachers on ad hoc basis for the duration it was not possible to make regular appointments in accordance with the procedure newly laid and unless such regular appointments had taken place, the appointment given on ad hoc basis could not cease. In the discussion made it may be noticed with utmost respect that there was no reference made to the various provisions of the Intermediate Education Act including Section 16-G(2)(c), nor does it appear to have been brought to the notice of their Lordships that Section 14 of the U.P. Act 26 of 1975 could be attracted where there was involved a process of selection in the form of recommendation for fresh or initial appointment and that this did not cover bringing in by transfer an appointee from one institution to another as part of the conditions of service. In the U.P. Act 26 of 1975 there was no provision corresponding to Section 32 of the U.P. Act 5 of 1982 and on that account also it did not come up to be considered whether there is essentially inconsistency arising in giving effect to the provision concerning transfer despite in the application of the Removal of Difficulties Orders. 70. The question debated in the present arose directly in Raton Pal Singh's case (Supra) 1982 Education Case 258. In the opinion of the Division Bench which decided this case the procedure laid down in Sections 10 and 11 of the U.P. Act 5 of 1982 qualifies the power of the Commission mentioned in Section 16 to make recommendations for appointment. The question debated in the present arose directly in Raton Pal Singh's case (Supra) 1982 Education Case 258. In the opinion of the Division Bench which decided this case the procedure laid down in Sections 10 and 11 of the U.P. Act 5 of 1982 qualifies the power of the Commission mentioned in Section 16 to make recommendations for appointment. The procedure as laid down in Sections 10 and 11 is inapplicable to a case of transfer. It cannot be said that the Commission is to be consulted or that the Commission has to make recommendations in regard to the transfer. The Commission can make recommendations only on the basis of regular selections as mentioned in Sections 10 and II. These provisions do not fit in with the concept of a transfer of the nature contemplated in the Regulations. The contention raised in that case that the impugned Act does not envisage appointment by transfer at all was negatived for the reasons mentioned as under with which we find ourselves in respectful agreement: Section 16-G (2)(c) made a specific provision with regard to transfer of service from one recognised institution to another as part of the conditions of service of teachers. Two teachers serving in different institutions may agree on a mutual exchange with the consent of the respective managements on the grounds of personal convenience or hardship and the authorities may find nothing objectionable in such a transfer. There is no reason why such transfers should have been sought to be totally barred merely because a Commission for centralised recruitment is proposed to be constituted. If the intention of the Legislature were to abolish transfers altogether there would have been no justification for continuing to retain Section 16-G (2)(c) in the Intermediate Education Act. Repugnancy between the provisions of two Acts is not to be readily assumed. The Courts are to treat the provisions of two different enactments to be inconsistent only when they are totally irreconcilable and only when they cannot stand together at all. In the Intermediate Education Act transfer was treated as condition of service of an existing incumbent and not as a mode of recruitment. The Courts are to treat the provisions of two different enactments to be inconsistent only when they are totally irreconcilable and only when they cannot stand together at all. In the Intermediate Education Act transfer was treated as condition of service of an existing incumbent and not as a mode of recruitment. It is true that regulation No. 60 makes a reference to the issue of a letter of appointment by the transferee institution; but, in our opinion, that provision has been made in the regulations only for purposes of completeness of record. After all, the incumbent transferred changes his employer, and the record of the new employer should be complete. In that sense, no doubt, every transfer involves the cessation of employemnt or under the previous employer and commencement or employment or appointment under a new employer. But the length of his earlier service counts for purposes of seniority, vide Regulation 59-A. Thus every transfer, though it does involve an appointment in the sense indicated above, is not a fresh appointment or a recruitment for a fresh appointment. It is only fresh appointments, and recruitment therefore which are sought to be regulated by the new Act. The word "appointment" appearing in Section 16 has to be construed in harmony with the provisions of the two Acts, particularly sections loudly of the New Act and Section 16-G of the Intermediate Education Act. Words take their colour from the context in which they appear. The expression "appointment" in its widest sense would, no doubt, include a transfer also but considering the context and the object of the new Act the word "appointment" as it appears in Section 16 cannot comprise an appointment through transfer or an appointment of say, a Government Official on deputation to a recognised institution. 71. The decision in Ratan Pal Singh has been followed by the other Division Bench in Committee of Management, National liter College case (supra) 1983 UP LB EC 198. 72. To summarise, the word 'appointment' appearing in Section 16 of the U.P. Act 5 of 1982 has to be interpreted in its proper context. 2. The 'context' covers the whole of the statute in which the provision is contained; the title, the preamble as well as the enacting particulars, the place assigned to the provision within the Act, the circumstances in which the Act was passed, its object and the legislative history. 3. 2. The 'context' covers the whole of the statute in which the provision is contained; the title, the preamble as well as the enacting particulars, the place assigned to the provision within the Act, the circumstances in which the Act was passed, its object and the legislative history. 3. Under the scheme of the Intermediate Education Act and the Regulations, initial or fresh appointment (direct recruitment or promotion) by selection through the medium of the Selection Committee was treated differently from transfer of a teacher from one institution to another as part of the conditions of service. 4. The Commission constituted under the U.P. Act 5 of 1982 is intended for the purpose of selection for initial or fresh appointment by direct recruitment or promotion including to the post of principal and transfer of an appointee from one institution to another as part of the conditions of service is outside its purview. 5. The selections which took place prior to July 14, 1981, when the U.P. Act 5 of 1982 came in force are not adversely affected as a result of this Act nor are such appointees required to be screened over again through the Commission. 6. There is no inconsistency as such between appointment by the process of selection on one side and transfer of an existing appointee on the other and, in view of Section 32 of the New Act, the provisions relating to transfer are still operative. 7. Alternatively the inconsistency, if any, is not such as may not appropriately be reconciled in keeping with the rule of harmonious interpretation. 8. The provisions of the Removal of Difficulties Orders cannot travel beyond the scope of the Act; since the Act does not prohibit transfer from one institution to another, the same may not be taken as forbidden by virtue of the Removal of Difficulties Orders. 9. In the event of there being an order of transfer by way of being a camouflage against the Act, the order may fail on that account but the power under the Act is not lost. 73. 9. In the event of there being an order of transfer by way of being a camouflage against the Act, the order may fail on that account but the power under the Act is not lost. 73. In the result, despite the enforcement of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (U.P. Act 5 of 1982) and the rules framed thereunder, the provisions contained in Section 16-G (2)(c) of the U.P. Intermediate Education Act, 1921 and Regulations 55 to 62 of Chapter III framed thereunder continue to be operative and effective. The decision in Ratan Pal Singh v. Deputy Director of Education VI Region, U.P. 1982 EC 258 and the Committee of Management, National Inter College, Cattail Indara, District Azamgarh v. The District Inspector of Schools, Azamgarh 1983 UPLBEC 198 are in our considered opinion sound and lay down good law. 74. The papers may now be laid with our opinion before the appropriate Bench. M.N. Shukla, A.C J.: 75. I have perused the judgment prepared by my brother B. D. Agarwai, J. but I regret that I am unable to agree with him and hence this separate judgment. The question of law which arises for determination in the present case which has come up before this Full Bench on a reference made by a Division Bench, in substance is whether even after the commencement of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (U.P. Act No. 5 of 1982)(hereinafter referred to as the Commission Act) which now provides for the manner of appointment of teachers of Intermediate Colleges of the State and is a self-contained and complete Code for the purpose, is it permissible for the Management to fill up a post by transferring a teacher from one institution to another? On the answer to this question would also depend the verdict as to which of the conflicting decisions of this Court taking one view or the other is correct. 76. The brief factual background which would highlight the legal controversy arising in the case is that on 30-6-1983 Sri H.S. Chauhan the Principal of the Gandhi Vidyalaya Intermediate College, Khekhra, district Meerut retired and in his place the Petitioner namely, Sri Raghunadan Prasad Bbatnagar, who was the seniormost Lecturer in the College, was permitted to officiate as the Principal. 76. The brief factual background which would highlight the legal controversy arising in the case is that on 30-6-1983 Sri H.S. Chauhan the Principal of the Gandhi Vidyalaya Intermediate College, Khekhra, district Meerut retired and in his place the Petitioner namely, Sri Raghunadan Prasad Bbatnagar, who was the seniormost Lecturer in the College, was permitted to officiate as the Principal. The College was under the control of an Administrator who started proclaiming that on 28-6-1983 a resolution had been passed by the Committee of Management of the College, whereby it was decided to appoint Respondent No. 3, namely, Sri Vikram Singh Dhakha as Principal of the College by transferring him from K. H. R. Inter College, Khampur-Luhari. It was alleged that a similar resolution dated 28-6-ly&3 was also passed by the Committee of Management of K.H.K. Inter College for transfer of Respondent No. 3 from the College of Khampur-Luhari to the Gindhi Vidyalaya Intermediate College. The District Inspector of Schools, Meerut is also alleged to have approved the transfer of Respondent No. 3 from the Khampur-Luhari College to the Khekhra College. It is this appointment of Respondent No. 3 sought to be achieved under the garb of transfer which has been impugned by the Petitioner. 77. A panoramic survey of the various measures which intervened during the last decade or more is essential for getting a clear picture of the maladies which defiled the pure well of educational institutions, and in order to eradicate which and purify the sanctums of study, the Legislature repeatedly resorted to distinct Acts of legislation, which were not uneaten preceded by the Government issuing Ordinances to forestall the same. It is widely known that some forces in order to satisfy their vested interests freely indulged in making appointments to educational institutions on considerations other than those of merit, and consequently it was perceived by the Government that the only remedy to mitigate this evil was to stedily wrest the power of making appointments from the hands of such vested interests and lace them more and more in the hands of a body which may function as an impartial and independent Commission for ensuring appointments on the sole basis of merit The first landmark in the series of steps which followed in this direction was the order which the State Government issued by the radiogram dated 7-4-1981 banning and staying all fresh selections and appointments of Principals, Head masters and teachers including recruitment by promotion. The radiogram message reads as under; From Secretary to Government of U.P. Education Department G.O. No. 1701/15-7-FI-1 (27)/81 dated 1-4-1981 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. District Inspectors to ensure non-drawl of pay of teachers appointed after this date. Detailed instructions follows. The validity of the aforesaid Radiogram was challenged before a Division Bench of this Court in the case of Dr. Ramji Dwivedi v. State of U.P. 1982 EC 69 and it was held that the said Radiogram had been issued under Article 162 of the Constitution and was valid and no appointment could be made after the issue of the aforesaid Radiogram. That case went up in appeal to the Supreme Court which also upheld the validity of the Radiogram issued by the State Government--see 1983 Education Cases 114, Dr. Ramji Dwivcdi v. State of U.P. On 10-7-1981 the Government promulgated the Uttar Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 U.P. Ordinance No. 8 of 1981. Clause 16 of the said Ordinance provided that no appointment of a teacher shall be made by the management except only on the recommendation of the Commission and any appointment of a teacher made in contravention of the provisions of Clause 16 shall be void. In exercise of the powers u/s 33 of the aforesaid Ordinance No. 8 of 1981 the State Government on 31-7-1981 issued the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order. In exercise of the powers u/s 33 of the aforesaid Ordinance No. 8 of 1981 the State Government on 31-7-1981 issued the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order. 1981, Clause 2 of which laid down the nature of vacancies in which 'ad hoc' appointments could be made by the management of an institution by promotion or by direct recruitment and Clause 4 provided that every vacancy in the post of the Head of an institution may be filled by promotion. On 11-9-1981 the State Government issued the Second Removal of Difficulties Order, 1981, Clause 2 of which provided the procedure for filling up short-term vacancies. On 30-l-1982 the State Government issued the Third Removal of Difficulties Order, 1982. This order substituted Paragraph 3 of the First Removal of Difficulties Order and on vided that every appointment of an "ad hec' teacher under paragraph 2 shall cease to have effect when a candidate recommended by the Commission or the Board, as the case may be, joins the post. Subsequently U.P. Ordinance No. 23 of 1981 was replaced by the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 (U.P. Act No. 5 of 1982). On 14-4-1982 the State Government in exercise of the powers u/s 33(1) of U.P. Act No. 5 of 1982 issued the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Fourth) Order, 1982. Under this Removal of Difficulties order appointment once made was to continue. 78. The Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 came into force with effect from 14-7-1981. Section 16 of the said Act provides that every appointment of a teacher shall be made by the management only on the recommendation of the Commission or the Board, as the case may be. For convenience sate Section 16 is reproduced below: 16. Appointments to be made only on recommendation of the Commission or the Board. (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 Shchedule shall, on or after July 10, 1981, be made by the management only on the recommendation of the Commission. (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 Shchedule 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 Hoard; 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 aforesaid 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. In exercise of the power u/s 35 of the Commission Act the State Government framed the Uttar Pradesh Secondary Education Services Commission Rules, 1983. Rule 6 of the same lays down the procedure for recruitment of teachers by the Commission. On 10-1-1983 the State Government in exercise of the power u/s 34(1) of the Commission Act framed the Uttar Pradesh Secondary Education Services Commission Regulations, 1983. 79. Thus, it would be seen that the effect of the aforesaid provisions is that they cover the entire field of appointment of teacher in non-government aided Secondary institutions of the State. Reference may be made to Section 18 of the Commission Act which deals with the appointment of 'ad hoc' teachers and provides that where the management has notified a vacancy to the Commission in accordance with the provisions of this Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely 'ad hoc' basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act 1921 or the regulations made thereunder. The wide spectrum of powers and duties of the Commission is borne out by the provisions of Section 9 of the Act. The wide spectrum of powers and duties of the Commission is borne out by the provisions of Section 9 of the Act. Section 10 sets out the procedure for selection of teachers by the Commission. 80. The impact of the Commission Act vis-a-vis the U.P. Intermediate Education Act, 1921, in other words, the extent of the overriding effect of the new provisions so as to remove the shortcomings which obtained under the old provisions is clearly indicated by the contents of Section 32 of the Commission Act which provides that 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. There is of course, no clear provision in the Commission Act repealing the U.P. Intermediate Education Act with regard to appointment of teachers etc. There is however sufficient indication in the Commission Act which would lead to the inscrutable conclusion that the appointment of a teachers after the enforcement of the Commission Act can be made only in accordance with the scheme laid down by it and not according to the U.P. Intermediate Education Act. In Siyaram Shakya v. State of U.P. 1982 UPLBEC 324 (D.B.) it was clearly ruled that even with regard to appointments which have been made and in respect of which proceedings have already started, Section 16 of the Commission Act would be applicable and hence no appointment could be made otherwise than in conformity with its provisions. 81. Section 32 of the U.P. Intermediate Education Act was commented upon and explained in another Division Bench of this Court in lndraraj Singh Yadav v. U.P. Madhyamic Shiksha Sewa Ayog, Allahabad 1984 EC 197. In that case relying on that provision it was urged that under Regulation 10 of Chapter 11 of the Regulations framed under the U.P. Intermediate Education Act, the quality point marks had not been laid down in any regulation framed u/s 34 of U.P. Act No. 5 of 1982 hence the quality point marks as well as the marks allotted under Regulation 10 for interview must prevail and ought to have been applied by the Commission. This contention was found devoid of merit. This contention was found devoid of merit. The Bench observed in paragraph 42: We find no merit in this contention. Firstly, the entire scheme of Selection under U.P. Act No. 5 of 1982 is radically different from that contemplated under the U.P. Intermediate Education Act. The task of holding selection has been entrusted under U.P. Act 5 of 1982 to a high powered commission consisting of eminent men drawn from academic field as well as Judiciary. The commission has also been vested with the power of exercising subordinate legislative functions, namely, that of making regulations u/s 34. There is absolutely no parity between the Commission, its composition, functions and duties and that of the Selection Committee constituted u/s 16-F(1) of the Intermediate Regulations etc. Elaborating the same reasoning it was further observed: Further reading Section 32 along with Section 6 U.P. Act No. 5 of 1982 clearly indicates that the legislative intent is that the provisions of the Intermediate Education Act and the Regulations made thereunder shall not be applicable not only when they are expressly inconsistent with any specific provisions of the Act or the Rules or the Regulations made thereunder but also if they are inconsistent with any decision taken or order passed by the Commission "under the powers specifically conferred upon the Commission under the Act or the Rules or Regulations made thereunder, That being so, it is apparent that the guidelines laid down by the Commission under the Regulations being inconsistent with Regulation 10 of Chapter II of the Regulations framed under the Intermediate Education Act, shall prevail and govern the selections. 82. In this context it would not be inapt to invoke the golden rule of interpretation enshrined in a pregnant verse of Sanskrit which says Upkramia Sangharoo abhayaso purwata phalam Arthvadopapatti ch ling tatparya nirnaye II (Sanscrit script written in English words--Ed.) Translated into English, it means that the real significance of a writing or work can be gathered by applying the following criteria (i) What does its Preamble provide? (Arambb) (ii) What is recited in its concluding part or Epilogue? (Upsanghar) (iii) What has been repeated or emphasised in it again and again? (Abhayaso) (iv) What is the new thing or innovation sought to be introduced by it? (Apurwata) (v) Which interpretation will promote the object which ii: seeks to achieve? (Arambb) (ii) What is recited in its concluding part or Epilogue? (Upsanghar) (iii) What has been repeated or emphasised in it again and again? (Abhayaso) (iv) What is the new thing or innovation sought to be introduced by it? (Apurwata) (v) Which interpretation will promote the object which ii: seeks to achieve? (Falam) (vi) What is /meant to be of special significance in its provisions? (Arthwat) (vii) What are the tacit assumptions or innuendos which furnish the clues to its understanding? (Uppati), 83. Applying the above tests to the cluster of provisions of the new Act mentioned in the earlier part of this judgment, the following inferences are clearly deducible: 1. The entire gamut of appointment of teachers to secondary institutions has now come to vest in the Commission vide Sections 9 and 16 of the Commission Act. All the details of such appointment etc. are fully provided for in the new Act. See Sections 10 and 11 and Rules 4 to 8 of the U.P. Secondary Education Services Commission Rules, 1983. 2. In case of any inconsistency between the old and the new sets of provisions the latter shall prevail. See Section 16(1)(a) and Section 32. 3. Any appointment made in contravention of the relevant provisions of the Commission Act shall be void. See Section 16(ii). 84. It would be pertinent to advert to those provisions of law under which the so called power of transfer of teachers is sought to be exercised. They are contained in Regulations 55 to 62 of the Regulations in Chapter III of the Regulations framed with respect to the matters provided by Section 16-G substituted by Section 15 of U.P. Act No. 26 of 1975 in the U.P. Intermediate Education Act, 1921. 85. Section 16-G of the U.P. Intermediate Act, 1921 in so far as it is relevant for the purpose of this case, is quoted below: 16-G. Conditions of service of Head of Institutions, teachers and other employees--(1) Every person employed in a recognized 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 consistent 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-sections (1), Regulations may provide for- (a) period of probation, the conditions, confirmation and the procedure and conditions for promotion and punishment, including suspension pending or in contemplation of inquiry or during the pendency or investigation, inequity or trial in any criminal case for an offence involving moral turpitude and the emoluments for the period of suspension and termination of service with notice; (b) The scale of pay and payment of salaries; (c) transfer of service from one recognized institution to another; (d) grant of leave and Provident Fund and other benefits; and (e) maintenance of record of work and service. Clause (c) of Sub-section (2) of Section 16-G aforesaid provides for transfer of service from one recognized institution to another. Regulation 58 (as it existed prior to 1975) of the Regulations framed under the U.P. Intermediate Education Act ran as follows: 58. As soon as a substantive vacancy or a temporary vacancy likely to be made permanent which is to be filled by direct recruitment is advertised the Manager shall send a copy of the advertisement along with particulars mentioned at "A" in regulation 17 of Chapter II to the Inspector or Regional Inspectress as the case may be. The Inspector or Regional Inspectress will promptly arrange with the Management to see whether the vacancy can suitably be filled 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. The above Regulation clearly dealt with the filling up of a vacancy which is different from mere transfer : it dealt with appointments. This was deleted by Notification No. Ma-8238/XV-7-76-2 (18)-1975, published in U.P. Gazette Extraordinary dated 2-12-1975. The other Regulations i.e. Regulations 59 to 62 were retained which should be construed as dealing with transfer in the limited sense of mere exchange between two officers. The surviving Regulations cannot be employed for the purpose of making fresh appointment. They would militate against the provisions of the Commission Act which is the law exclusively dealing with fresh appointment of teachers in such educational institutions. It would be pertinent to quote Regulations Nos. 59 to 62: 59. The surviving Regulations cannot be employed for the purpose of making fresh appointment. They would militate against the provisions of the Commission Act which is the law exclusively dealing with fresh appointment of teachers in such educational institutions. It would be pertinent to quote Regulations Nos. 59 to 62: 59. No person employed in a recognised institution shall be transferred from that institution to any other institution unless: (a) the Committee of Management for each such institution, by means of a resolution, duly passed in that behalf concur in such transfer; (b) the permission in writing of the Inspector is obtained before giving effect to such transfer. 60. The order of appointment in the new institution of an employee transferred from another institution shall mention along with other particulars prescribed, the fact of his transfer and the name of the institution from which he has been transferred. " 61. Within a month of the transfer of an employee from one institution to another the Manger of the former shall, under intimation to the Inspector or Regional Inspectress concerned, send to the Manager of the latter institution the employee's Service Book, Character Roll, Leave Account, Provident Fund Account and other relevant papers, all duly posted up-todate. 62. An employee shall not be entitled to travelling allowance on transfer. He will however, be permitted journey time at the rate of one day for every 100 miles or part thereof subject to a maximum of three days. The salary for journey time will, in the absence of agreement to the contrary, be. paid by the institution whiah he joins on transfer. Obviously the object of deleting the old Regulation 58 appears to be that the surviving Regulation should not be pressed into service for the purpose of filling up a vacancy but merely effecting mutual exchange or transfer. The effect of the Commission Act and its forbears, the Ordinances and the Radiogram was to take any altogether from the Management in non-Government aided schools the power of making appointment of teachers. Hence, allowing such appointment to be made otherwise than through the Commission i.e. through the instrumentality of the Managements of two institutions by means of transfer would be manifestly inconsistent with the provisions of the Commission Act and Rules. Hence, allowing such appointment to be made otherwise than through the Commission i.e. through the instrumentality of the Managements of two institutions by means of transfer would be manifestly inconsistent with the provisions of the Commission Act and Rules. Sections 10 and 11 of the Commission Act and Rules 4 to 10 of the U.P. Secondary Education Services Commission Rules provide a self contained fresh machinery for the appointment of teachers. In these circumstances the filling up of a vacancy by resorting to transfer shall he plainly inconsistent with the provisions of the Commission Act and Rules. Repugnancy between two enactments can arise in a number of ways which were summed up by the Supreme Court in Deep Chand Vs. The State of Uttar Pradesh and Others, AIR 1959 SC 648 on the basis of the following three principles; (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field. In the instant case in my opinion the old provisions and new provisions occupy the same field relating to the appointment of teachers and filling up of vacancies, that there is a conflict between the two and so the latter provisions must prevail over the older ones. Apart from direct repugnancy inconsistency can also be inferred from the fact that the result of enforcing a certain earlier provision would be to nullify or destroy the operation of the later provision in point of time, both occupying the same field. It was precisely this criterion which was applied in Rameshwar Prasad and Others Vs. State of Uttar Pradesh and Others,(supra), in order to strike down a notification issued by the State of Uttar Pradesh u/s 43-A of the U.P. Motor Vehicles Act. The ratio of that decision was that even in the absence of a direct conflict inconsistency may be inferred from the fact that the effect of enforcing certain action would be to circumvent or nullify or destroy the operation of the categorical provisions of some law or statute. Therefore, the proper course for the courts in such situation is to apply the law of harmonious construction. Therefore, the proper course for the courts in such situation is to apply the law of harmonious construction. The provisions of a statute should be so read as to make them compatible with those of another dealing with the same subject and the provisions of one should not be allowed to defeat those of another unless it is impossible to effect a reconciliation between them. 86. The above mentioned provisions deal with transfer of teacher which is one of the conditions of service prescribed u/s 16-G (2)(c), and is distinct from their appointment for which the substantive provision is found in Section 16-E of the U.P. Intermediate Education Act which runs as under: 16-E. Procedure for selection of teachers and head of institutions. Subject to the provisions of this Act, the Head of Institution and teachers of a institution shall be appointed by the Constitution of Management in the manner hereinafter provided. (2) Every post of Head of Institution or teacher of 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 parson shall be appointed as Head of Institution or teacher in an institution unless he possesses the minimum qualifications 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 appointments as Head of Institution or teacher of an institution 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)(1) 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. (2) 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 Regulation. (2) 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 Regulation. (6) The Selection Committee shall prepare a list containing in order of preference the names as far as practicable 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 the appointment of teacher of an institution, is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act the State Government or, as the case may, 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. This section is exhaustive of the mode and procedure of appointment of teachers and heads of institutions. Whatever may have been the position prior to the enactment of the Commission Act but now the position which....? is that the provisions relating to transfer cannot bear an interpretation which would conflict with the provisions of the Commission Act really speaking the Commission Act gives a new direction and orientation to the provisions of the U.P. Intermediate Education Act and Regulations framed thereunder and it also furnished a key to the interpretation of the old provisions. Adopting the well-established rule of harmonious interpretation the provisions about transfer in Section 16-G(2)(c) and the relevant Regulations must be so construed as to reconcile them with the working of the Commission Act and the Rules framed thereunder. I have already referred to those provisions of the new Act and the Rules which give them unmistakably an over-riding effect over the older provisions The word 'transfer' as used in Section 16-G(2) or the relevant Regulations must now be confined to transfer 'simplicities' i.e. mutual exchange which is not to be equated with appointment in a 'vacancy'. If 'A' serving in institution 'X' and 'B' serving in institution 'Y' agree to change places after complying with the procedure provided by Regulations 55 to 62, that would be permissible; still it would not be tantamount to appointment. Every transfer presupposes a reciprocity or exchange or mutuality between two incumbents serving in different institutions. In the process of such interchange no vacancy in the eye of law occurs; it is just a change of places. Of course, in the physical sense every movement or alteration involves a brief or transitory vacuum but there is no notional or legal vacancy. In the process of such interchange no vacancy in the eye of law occurs; it is just a change of places. Of course, in the physical sense every movement or alteration involves a brief or transitory vacuum but there is no notional or legal vacancy. The essence of 'appointment' is the prior existence of a notional or legal vacancy. The essential ingredients of an 'appointment' may be thus formulated: (a) Occurrence of a vacancy i.e. a post has fallen vacant by retirement, death, removal etc.; and (b) that a person is assigned to that post i.e. filling up of the vacancy. Thus, appointment is synonymous with filling up a vacancy. On the other hand, the incidents of transfer 'simplicities' are: (i) the service remains the same; (ii) the employer does not change. Thus, for instance, if the substantive post of a District Judge falls vacant and another person already posted as District Judge at some other station is nominated as a substitute of the incumbent retiring, it would be merely a case of 'transfer' and not "appointment'. The reason is that the new incumbent also remains a member of the same judicial service, his employer does not change. On the other hand, in the case of a transfer of teacher from one institution to another the service changes and the employer also changes. Educational institutions are ton by different societies and they have their distinct schemes of administration. The legal incident of employment of service is that the employer or the master must be able to exercise control and direction over the employee or servant. The change of employer is inconsistent with transfer which presupposes continuity of the employment-See AIR 1970 SC 823 The Manager Pyarchand Kesarimal Porwal Bidi Factory v. Onkar Laxman Thence, This proposition can be amply illustrated by referring to the observations of the Supreme Court in Civil Appeal Nos. 24 and 25 of 1968 Jalaon Zila Parlshad v. Duman Govind. In that appeal the question arose as to whether persons appointed to the posts of Kotwals by the Government who were by a later resolution of the Government transferred as Kotwals to the Zilla Parishads became on such transfer the employees of the Parishads and ceased to be the employees of the Government. In that appeal the question arose as to whether persons appointed to the posts of Kotwals by the Government who were by a later resolution of the Government transferred as Kotwals to the Zilla Parishads became on such transfer the employees of the Parishads and ceased to be the employees of the Government. The contention on behalf of the Zilla Parishads was that though the services of the Kotwals were transferred to the Parishads they did not cease to be employees of the Government. This contention was repelled. The basis of the decision was that in pursuance of the Government resolution the Collectors as the heads of the department in the District allocated the Kotwals to the Parishads and the Chief Executive Officers of the Parishads accepted them and issued orders on each of the said Kotwals informing them that their services had been transferred to the Parishads and directing them to report on duty at the places stated in those orders. In consequence of the transfer of these Kotwals the Chief Executive Officer also called for service records from the Government. Further all service records of these Kotwals were transferred to the Parishads On these facts it was held that there was by operation of law termination of their survives with the Government and they had become the employees in Class III service of the Zila Parishads. In S.P. Gupta Vs. President of India and Others, (supra), the following passage from Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another,(supra), was quoted with approval. In that case Krishna Iyer, J. had observed: (page 302) t It would be seen that in this constitutional provision the words "appointment" and "transferred" have been used separately conveying different connotations; and if the Constitution makers had used these two terms in the said subject in different contexts it cannot be argued that these two terms are interchangeable. On the other hand, an analysis of Article 217(1)(c) shows that the constitutional provision makes a clear-cut distinction between appointment and transfer. Some times an ostensible transfer may be actually a case of appointment. One valid test for distinguishing appointment from transfer is that the departure of the incumbent from his erstwhile post results in his removal from the same. In case he still retains his lien on the original post it may not be a case of fresh appointment but mere transfer. One valid test for distinguishing appointment from transfer is that the departure of the incumbent from his erstwhile post results in his removal from the same. In case he still retains his lien on the original post it may not be a case of fresh appointment but mere transfer. This, in Dr. D R. Thakur, Dean College of Agriculture, Himachal Pradesh Krishi Visiva Vidyalaya Solan v. Himachal Pradesh Krishi Vishva Vidyalaya Palampur 1980 (3) SLR 69 the facts were that the Petitioner was apparently transferred from the post of Dean, College of Agriculture to the post of Dean, Post Graduate Studies. The post of Dean, Post-graduate Studies was a separate cadre and could not be filled up by transfer; it could be filled up in accordance With the provisions of Section 20 of Krishi Act. II was held that such transfer was tantamount to the Petitioners removal from service of Dean of College and hence the order of transfer was struck down as illegal. The pith and substance of the new Act, and its central object is to ban appointment of teachers otherwise than through the instrumentality of the Commission In case vacancies are still allowed to be filled up by resorting to transfer that would be plainly repugnant to the provisions of the new Act and would defeat its very object Section 16-G (c) only provides conditions of service. Hence, so long as it is just a 'transfer simplicities' i.e. mutual exchange, it remains, condition of service but if it is treated as a mode of appointment it would become inconsistent with Section 16 of the new Act. Therefore, attempt should always be to interpret Section 16-G(2)(c) in such a manner as to make it consistent with Section 16-E of the U.P. Intermediate Education Act and Section 16 of the Commission Act. In my opinion the decisions in Ratan Pal Singh v. Deputy Director of Education VIth Region, U.P. Lucknow 1983 UP LB EC 34 : 1982 EC 258 and the Committee of Management, National Inter College, Adari Indara, district Azamgarh v. The Inspector of Schools, Azamgarh 1983 UP LB EC 198 do not lay down the correct law. So long as there is mere exchange, it can be effective through transfer, but if a vacancy supervenes, it cannot be filled by the device of transfer between two incumbents. So long as there is mere exchange, it can be effective through transfer, but if a vacancy supervenes, it cannot be filled by the device of transfer between two incumbents. I am, therefore, inclined to agree with the view expressed in Har Swaroop Misra v. State of U.P. 1978 ALR 215. 87. It is essential to bear in mind the objects of the Commission Act. The Statement of Objects and Reasons appended to the relevant Bill reads as follows: 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 selection of teachers under the provisions of the said Act and the regulations was sometimes 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, Headmasters and L.T. Grade teachers and Secondary Education Selection Boards at their final level, to select and make available suitable candidates for comparatively Lower posts in C.T./J.T C/B T. C. grades for such institution. These objects would prove wholly illusory if the dictum m Ratan Pal Singh's case (Supra) is upheld which categorically ruled that the said Act was enacted with the intention of ensuring fair and proper selection through Statewide commission so that the best talents might be made available. The observations of this Court with regard to the U.P. Secondary Education Services Commission and Selection Board Ordinance, 1981 (U.P. Ordinance No. 8 of 1981) which was a prelude to the Commission Act apply with full force to the objects of the latter Act. In Siyaram Shakya's case (Supra) it was observed by this Court: The Ordinance has a laudable object for establishing a Secondary Education Service Commission and Selection Boards, for selection of teachers in the institutions. This has been done to find out the best of those who are entitled to be appointed as teachers. The obvious purpose is the benefit of the students. The State in a democratic set up is vitally interested in securing a healthy system of education for its coming generation of citizens, and, as such the Ordinance had been issued to achieve that purpose. The obvious purpose is the benefit of the students. The State in a democratic set up is vitally interested in securing a healthy system of education for its coming generation of citizens, and, as such the Ordinance had been issued to achieve that purpose. A 'transfer' cannot be made a subturfuge for making 'appointment' with respect to which the power vests only in the Commission. 88. If the view in Ratan Pal Singh's case (Supra' is allowed to prevail and appointments by transfer are held permissible to fill vacancies, it would defeat the very object of the Commission Act and it would not be difficult for institutions actuated by ulterior motive to adopt the convenient device of mutual exchange of teachers and by securing such transfer make regular appointments by the Selection Board verily impossible. Any management with a view to circumventing the provisions of the Commission Act may fill the post at any time even after the selection is made but before actual appointment on the basis of the recommendation of the Commission by transferring a teacher from one institution to another which is contrary to the very spirit of the Act. In my opinion a transaction which leads to such result cannot be accepted. A perusal of the various provisions of law, ordinances, Regulations and Orders etc to which I have already adverted, would demonstrate that if a vacancy occurs on account of retirement or otherwise it can be filled only under the various Removal of Difficulties Orders and it cannot be filled by promotion. A bare look at Regulations 55 to 60 of Chapter III framed under the U.P. Intermediate Education Act would also show that appointments can be made by transfer of a teacher from one institution to another but in that context a restricted meaning will have to be given to the word 'transfer'. A complete harmony between the old provisions and the new law can be effected and the supreme object of manning educational institutions with men of doubtless merit be achieved by giving to the word 'transfer' the restricted meaning of mutual exchange and giving to the word 'appointment' a wider meaning so as to include 'appointment by transfer'. An appointment consists in doing something which has the intrinsic ingredient of appointment notwithstanding the fact that it is given the nomenclature of transfer. An appointment consists in doing something which has the intrinsic ingredient of appointment notwithstanding the fact that it is given the nomenclature of transfer. In the instant case I find that even the employer is changed in case of the so-called 'transfer' of a teacher from one educational institution to another. The person so transferred becomes an employee of the transferee institution and so it becomes a case of appointment under the guise of transfer. Regulation 60 speaks of appointment in the new institution and the effect of Regulation 59-A is that the employer changes and the teacher concerned becomes an employee of the transferee institution. 89. The Constitution makers were fully aware of the difference between the concepts of 'appointment' and 'transfer'. An analysis of Articles 217(1)(c) and 222 shows that the constitutional provisions make a clear cut distinction between appointment and transfer. As observed by the Supreme Court in Oriental Metal Pressing Works (P.) Ltd. Vs. Bhaskar Kashinath Thakoor and Another, (supra). An appointment to an office can be made only if the office is vacant. It is legitimate, therefore, to infer that by using the word "his" the Legislature indicated that an appointment by director to the office which he previously held but did not held at date of the appointment, was not to be included within the word "assignment". Again, there can be no doubt that the section was intended to render void a transfer of his office by a director for, if the section had intended only to avoid an appointment by a director of his successor, it would have clearly said so and would not have used the word "assignment". Therefore, even if it is possible for the word "assignment" to have the meaning of "appointment", then it would have to be given both the meanings of "transfer" and "appointment" in the section. This is what the High Court did. That would produce a curious result. Transfer and appointment are clearly entirely different things. Even apart from considerations arising from the law of conveyance, which the High Court was unable to entertain in connection with the transfer of an office, a transfer from its very nature inevitably imports the passing of a thing from one to another; a transfer without the passing of the thing transferred, even when that thing is an office, cannot be conceived. An "Appointment", on the other hand, has nothing to do with anything passing from one to another; it connotes the putting in of someone in a vacancy. The acts constituting a transfer and an appointment are therefore wholly dissimilar. 90. An alrernative argument advanced by Sri A. K. Sharma on behalf of one of the Petitioners may also be briefly noted. His contention, if carried to its logical conclusion would rule out transfer altogether after the enforcement of the new Act. Learned Counsel submitted that the power of transfer of service of a teacher from one recognised institution to another was no longer available to the Committee of Management after the coming into effect of the new Act He submitted that Section 16-E of the U.P. Intermediate Education Act provided two modes of appointment in a recognised institution, one be direct recruitment and the other by promotion. While Section 16-G which deals with conditions of services of heads of the institutions, teachers and other employees, provides that regulations may be framed for transfer of services of a teacher from one recognised institution to another, such transfer also amounts to fresh appointment in the institution to which he is transferred. The educational institutions are run by private societies registered under the Societies Registration Act having their separate byelaws. The administration of these "institutions vests in the Committee of Management elected under their own" scheme of administration. When a teacher is transferred from one institution to another he ceases to be an employee of the former and becomes an employee of the latter on the basis of the fresh appointment letter. There is no common service and therefore on transfer the employee of a teacher is also changed. Thus, by making provisions for transfer of service of a teacher from one institution to another, the legislature has created another mode of appointment and thus there are, in fact, three modes of appointment--direct recruitment, promotion and transfer. Section 16 of the U.P. Act No. V of 1982 provides that every appointment of a teacher shall be made by management only on the recommendation of the Commission constituted for the purpose which means that Committee of Management is not empowered to make appointment of teacher by any of the three modes provided under U.P. Act No. II of 1921. No doubt such ingredients of appointment are present in the transfer of a teacher from the institution to another, yet it appears that the legislature intended to give a different meaning to the term 'transfer' as distinguished from the term 'appointment' and otherwise it could have provided three modes of appointment u/s 16-E itself which deals with the appointment of teachers instead of making provision for framing regulations regarding transfer of services of a teacher from one institution to another u/s 16-G which deals with the conditions of service. Moreover, when the Legislature has used two different terms in the same statute, 'transfer' and 'appointment' cannot be placed at par. 91. The various provisions of U.P. Act No. II of 1921 and U.P. Act No. V of 1982 have already been examined by me in the foregoing pages which reveal the real intention of the Legislature in making provisions for framing regulations for transfer of services of a teacher from one recognised institution to another, even when there is neither a common service nor a common employer. However, it is not necessary to go to that extent and ultimately arrive at the conclusion that the power of transfer can no longer be exercised after the application of the new Act. As already observed, the two Acts can be reconciled with each other by giving to the word 'transfer' a restricted meaning by adjudging an order of appointment on its intrinsic attributes irrespective of the word ' transfer ' predicated to it. It is the substance which matters and not the form. 92. J.N. Dubey, J.:- I agree.