PETITIONER: BISWANATH BANARJEE Vs. RESPONDENT: STATE OF WEST BENGAL & ORS. DATE OF JUDGMENT02/03/1971 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN HEGDE, K.S. CITATION: 1971 AIR 1038 1971 SCR (3) 897 1971 SCC (1) 667 ACT: West Bengal Board of Secondary Education Act (5 of 1963), ss. 16 and 46(2)-Existing employees to continue in office till arrangements are made under the Act-Appointment of Secretary under the Act-Whether services of previous Secretary dispensed with-Wheather existing employer are 'deemed' to be the employees of the Board under the Act. HEADNOTE: In 1962, the appellant was appointed Secretary of the Board of Secondary Education constituted under the West Bengal Secondary Education Act, 1950, as amended in 1954. In 1963, the West Bengal Board of Secondary Education Act was enacted repealing the earlier Acts and the rules made thereunder. The 1963-Act 'constituted an entirely new Board of Secondary Education. Under s. 46(2), the services of the persons in the employment of the Board under the old Act are continued until other provision is made. Under s. 16, the power of appointment of the Secretary for the Board is vested in the State Government and not in the Board. Rule 8 of the Rules made under the 1963-Act provided that the State Government may dispense with the services of the Secretary on three months' notice or payment of three months' salary in lieu of notice. The State Government dispensed with the services of the appellant paying him three months' salary in lieu of notice, and appointed a new secretary in his place. On the questions : (1) Whether the State Government could act under r. 8 in respect of a person who is continued in service under s. 46 of the 1963-Act; and (2) Whether the services of an employee of the Board could be terminated by the State Government, HELD : (1) All that the 1963-Act provides for is the continuance of the employees of the previous Board till other arrangements are made. That is, in the present case, the appellant was continued in service only until another secretary was appointed by the State Government under the 1963-Act; and the State Government has the power to appoint a Secretary under s. 16 of the Act, irrespective of its powers under the Rules. [1901 A-C] (2) Under s. 46(2) of the 1963-Act the appellant merely continues in service but he is not deemed to be on employee of he Board. Therefore, there is no basis for the argument that the services of an employee of the Board could only be terminated only by the Board and riot by the State Government. [901 C, F] State of Assam v. Kripanath Sarma, [1967] 1 S.C.R. 499, distinguished. JUDGMENT:
CIVIL APPELLATE JURISDICTioN : Civil Appeals Nos. 1674 and
1675 of 1969.
898
Appeals from the judgment and decree dated July 23, 1968 of
the Calcutta High Court in Appeal from Original Order Nos.
185 and 186 of 1967.
B. Sen, D. N. Mukherjee and Somendra Chandra Bose, for the
appellant.
K. R. Chaudhuri and K., Rajendra Chowdhary, for respon-
dents Nos. 2, 3 and 6.
Santosh Chatterjee, G. S.Chatterjee for Sukumar Basu, for
respondent No. 1.
The Judgment of the Court was delivered by
P. Jaganmohan Reddy, These appeals are by a certificate
under Art. 132(C) of the Constitution of India against the
judgment of the Calcutta HIgh Court, which have by an order
of this Court dated 25-8- 1969 been consolidated for the
purpose of hearing. The short question for determination in
these appeals in whether under the provisions of the West
Bengal Board of Secondary Education Act 5 of 1963 read with
Rule 8 of the West Bengal Board of Secondary Education
(Appointment of Secretary) Rules, the appellant I could be
discharged from the service of the Board of Education. The
appellant was an office Superintendent of the Board
constituted under the West Bengal Secondary Education Act 37
of 1950 (hereinafter called ‘the 1950 Act’). He was
promoted as Assistant Secretary on 12-7-1952, as Deputy
Secretary on 18-6-56 and on the 1st/8th August 1962 he was
appointed as Secretary on probation and confirmed on 1-8-63
by an order dated the 24th August 63. The appellant
continued in this office till 25th November 66 when his
services were dispensed with, with immediate effect on
payment of 3 months salary in lieu of notice. In his place
the Government by its order of the same date appointed
temporarily respondent 6-D. Mazumdar, Director of Consumer
Goods, West Bengal as Secretary for a period not exceeding 6
months from the date on, which be takes charge of the
office. As we have earlier mentioned the initial Act under
which his appointment was the Act of 1950. Subseq hotly
another Act known as the West Bengal Secondary Education
(Temporary Provision) Act 24 of 1954 was passed by the
Legislature, by which the Board created by the Act of 1950
was superseded and its powers were vested in an adminis-
trator appointed by the State Government. It was the
administrator who had appointed the petitioner on probation.
On the 20th February 63 the West Bengal Board of Secondary
Education Act 5 of 1963 (hereinafter called ‘the 1963 Act’)
was passed which came into force on 1-1-1964. Before this
Act came into force
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certain regulations were made on 12-12-63 under the Act of
1950, rule 4 of which dealt with the conditions of service
which were similar to those in Rule 4 of 1951 regulations
made on 19-9-51. Under regulation 4 of 1951 the Board had
power to dispense with the services of the Secretary or any
officer by giving 3 months notice or on payment to him of 3
months salary in lieu of notice. Act 22 of 1954 it may be
mention did not abolish the Board but only authorised the
Administrator to carry on the duties and functions vested in
the Board so that the appellant when he was appointed on
probation by the Administrator was an employee of the Board.
The 1963 Act by clause 1 of Sec. 46 repealed both the 1950
Act as well as the temporary provisions Act 22 of 1954 and
by sub-clause (2) it provided that “all Officers and other
persons in the employment of the Board of Secondary
Education immediately before the commencement of this Act
shall until provision is made continue in the service of the
Board’. It may here be mentioned that prior to the
enforcement of the Act on 1-1-64 the Government had made and
published rules under that Act known as the West Bengal
Secondary Education (appointment of Secretary) Rules 1963,
rule 8 whereof is in the following terms
.lm15
” The State Government shall have the power to dispense with
the services of the- Secretary on three months’ notice or in
lieu of such notice on payment of three months’ salary and
also to discharge or dismiss the Secretary from service
without notice or compensation in the event of misconduct or
of a breach of any of the duties attached to the post of
Secretary”.
It is in exercise of powers vested under this Rule that the
Governor dispensed with the services of the appellant which is no
w challenged.. The learned Advocate for the appellant
contends inter-alia that :-
(i) the rule under which the appellant’s services have been
dispensed with have no application to the case of a person
who continues in service under Sec. 46 (2) (c) of the 1963
Act,
(ii) being an employee of the Board, his services could only
be terminated by the Board and not by the State Government,
(iii) -Sec. 46(2) (c) envisages that till some other
employment is found for all those persons who were in
employment of the Board of Secondary Education before the
commencement of the 1963 Act, they cannot be discharged.
For an appreciation of these contentions it is necessary to
examine the relevant provisions of the 1963 Act.
Under Sec. 2(a) the Board means the West Bengal Board of
Secondary Education established under the 1963 Act. Section
3
90 0
empowers the State Government as soon as may be after the
Act comes into force to establish the Board named the West
Bengal Secondary Education Board. The Board shall be a body
corporate with perpetual succession and a common seal.
Section 4 deals with the composition of the Board which it
may be stated is totally different to that which comprised
the Board, under the 1950 Act. The appointment of persons
in the service of the Board and their condition of service
etc. are the subject matter of Section 16, the relevant
provisions of which are as follows :-
(1) The Board shall have a Secretary who
shall be appointed by the State Govt.
(2) The Board may appoint such other
officers and servants as it considers
necessary for carrying out the purposes of
this Act.
(3) The terms and conditions of appointment
and the scales of pay and allowances, if any,
shall-
(a) as respect the Secretary be such as may
be prescribed, and
(b) as respect the other officers and
servants be such as may be determined by
regulations.
(4)
Sub-sec. 1 ) of Sec. 45 empowers the State
Govt. after previous publication, to make
rules for carrying out the purposes of this
Act and sub-sec. (2) (f) provides that :
“In particular, and without prejudice to the
generality of the foregoing power, such rules
may provide for all or any of the following
matters, namely-
(f) the terms and conditions of appointment,
the scale of pay and the rules of discipline
relating to the Secretary of the Board.
It is under the last mentioned provision 45 (2) (f ) that
the rules were made, rule 8 of which we have already
extracted. It will thus ‘be seen that the 1963 Act
constituted an entirely new Board of Secondary Education and
after repealing the old Acts it continued the services of
the Officers and other persons in the employment of the
Board of Education under the old Act until other provision
is made. It may be stated that the power of appointment of
a Secretary for the Board under Sec. 16 is not vested in the
Board but in the Govt as such there can be no validity in
the contention of the learned Advocate for the appellant
that the Govt. has no power to appoint a Secretary in place
901
of the appellant who according to him still continues as
Secretary under the Board. As we read the provisions, we
are clear in our minds and it admits of no doubt that the
Board has no. power to appoint a Secretary, nor has the,
appellant a right to. the post as such. All that the Act
provides for is the continuance of the employees of the
previous Board till other arrangements are made, namely till
a Secretary is appointed by the Govt. In our view the
appointment of the new Secretary can be traceable to the
powers vested in the Govt. under Sec. 16 irrespective of the
power vested under the rules. The argument that the
appellant being an employee of the Board his services could
only be terminated by the Board and not by the State Govt.
has no validity in that the old rules have been repealed and
the new Board ha,, no power to appoint a Secretary. It has
been urged before us that a decision of this Court in State
of Assam v. Kripanath Sharma & Ors. etc.(1), lends support
to the contention of the learned Advocate. That case was
under the Assam Elementary Education Act 1962 the relevant
provisions of which are not in pari-material with the
provisions of the Act which we ate called upon to
consider. The respondents in that case were Elementary
Education School Teachers appointed under the Assam Basic
Education Act 1954. That Act was repealed by the Assam
Elementary Education Act 1962 under which the Board was to
be constituted and in the place of the School Boards
functioning under the 1954 Act, the Deputy Inspectors of
Schools were made Assistant Secretary of the said
Board within their respective jurisdiction. Sec. 34(2)
provided that all the Elementary School Teachers appointed
under the 1954 Act would be taken over by the State Board
and who under Section 38 were further deemed to have been
employed by the said Board. The statute therefore provided
that they were the employees of the Board. Sec. 46(2) (c)
however merely continues them and does not deem the to be
employees of the Board. What happened in that case was that
the Board merely passed a resolution “that all teachers who
are not Matriculates or who have not passed the Teachers
test but who are working as Teachers in School shall be
discharged with effect from 31-3-63”. The Assistant
Secretary without obtaining specific sanction from the
Board issued orders for their discharge which he had no
power to do. In those circumstances the power to
terminate the services being in the Board, it was held
that the order of termination by the Assistant Secretary was
invalid. This case does not help the appellant. Lastly the
earned Advocate sought to press in aid a Judgment of a Bench
of the Calcutta High Court in Bidyut Kr. Biswas & Ors. V.
West Bengal Board of Secondry Education & Ors.(2) in
which the
(1) [1967] 1 S.C.R. 499. (2) C.W.N. Vol. 73 (1968-(9) 417.
902
provision of Sec. 46(2) (c) of the 1963 Act were dealt with
in support of his contention that the persons in the
employment of Board of Secondary Education under the 1950
Act could only be discharged if an alternative employment is
found for them inasmuch as the words until other provision
is made’ justifies that conclusion. This point has not been
raised in the Writ Petition nor has it been urged either
before the Single Bench or before the Division Bench of the
High Court and is sought to be raised for the first time
before this Court. We cannot permit him to do so, and
therefore express no views on this aspect of the case. In
the result the appeals are dismissed but in the
circumstances without costs.
V.P.S. Appeals dismissed.
903