{"id":225349,"date":"1971-03-02T00:00:00","date_gmt":"1971-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/biswanath-banarjee-vs-state-of-west-bengal-ors-on-2-march-1971-3"},"modified":"2016-04-18T09:44:47","modified_gmt":"2016-04-18T04:14:47","slug":"biswanath-banarjee-vs-state-of-west-bengal-ors-on-2-march-1971-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/biswanath-banarjee-vs-state-of-west-bengal-ors-on-2-march-1971-3","title":{"rendered":"Biswanath Banarjee vs State Of West Bengal & Ors on 2 March, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Biswanath Banarjee vs State Of West Bengal & Ors on 2 March, 1971<\/div>\n
Equivalent citations: 1971 AIR 1038, \t\t 1971 SCR (3) 897<\/div>\n
Author: P J Reddy<\/div>\n
Bench: Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nBISWANATH BANARJEE\n\n\tVs.\n\nRESPONDENT:\nSTATE OF WEST BENGAL & ORS.\n\nDATE OF JUDGMENT02\/03\/1971\n\nBENCH:\nREDDY, P. JAGANMOHAN\nBENCH:\nREDDY, P. JAGANMOHAN\nHEGDE, K.S.\n\nCITATION:\n 1971 AIR 1038\t\t  1971 SCR  (3) 897\n 1971 SCC  (1) 667\n\n\nACT:\nWest  Bengal Board of Secondary Education Act (5  of  1963),\nss.  16 and 46(2)-Existing employees to continue  in  office\ntill  arrangements  are made under  the\t Act-Appointment  of\nSecretary   under  the\tAct-Whether  services  of   previous\nSecretary  dispensed  with-Wheather  existing  employer\t are\n'deemed' to be the employees of the Board under the Act.\n\n\n\nHEADNOTE:\nIn 1962, the appellant was appointed Secretary of the  Board\nof  Secondary  Education constituted under the\tWest  Bengal\nSecondary Education Act, 1950, as amended in 1954.  In 1963,\nthe West Bengal Board of Secondary Education Act was enacted\nrepealing  the earlier Acts and the rules  made\t thereunder.\nThe 1963-Act 'constituted an entirely new Board of Secondary\nEducation.   Under s. 46(2), the services of the persons  in\nthe employment of the Board under the old Act are  continued\nuntil  other provision is made.\t Under s. 16, the  power  of\nappointment of the Secretary for the Board is vested in\t the\nState Government and not in the Board.\tRule 8 of the  Rules\nmade  under the 1963-Act provided that the State  Government\nmay  dispense  with the services of the Secretary  on  three\nmonths' notice or payment of three months' salary in lieu of\nnotice.\t The State Government dispensed with the services of\nthe  appellant\tpaying him three months' salary in  lieu  of\nnotice, and appointed a new secretary in his place.\nOn  the questions : (1) Whether the State  Government  could\nact  under r. 8 in respect of a person who is  continued  in\nservice\t under\ts. 46 of the 1963-Act; and (2)\tWhether\t the\nservices of an employee of the Board could be terminated  by\nthe State Government,\nHELD  :\t (1)  All  that the 1963-Act  provides\tfor  is\t the\ncontinuance  of\t the employees of the  previous\t Board\ttill\nother arrangements are made.  That is, in the present  case,\nthe  appellant was continued in service only  until  another\nsecretary  was appointed by the State Government  under\t the\n1963-Act; and the State Government has the power to  appoint\na  Secretary  under s. 16 of the Act,  irrespective  of\t its\npowers under the Rules. [1901 A-C]\n(2)  Under  s.\t46(2) of the 1963-Act the  appellant  merely\ncontinues in service but he is not deemed to be on  employee\nof he Board.  Therefore, there is no basis for the  argument\nthat the services of an employee of the Board could only  be\nterminated  only  by  the  Board  and  riot  by\t the   State\nGovernment. [901 C, F]\nState  of  Assam v. Kripanath Sarma,<\/a> [1967]  1\tS.C.R.\t499,\ndistinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTioN : Civil Appeals Nos. 1674\t and
\n1675 of 1969.\n<\/p>\n
898<\/span><\/p>\n
Appeals from the judgment and decree dated July 23, 1968  of
\nthe  Calcutta High Court in Appeal from Original Order\tNos.
\n185 and 186 of 1967.\n<\/p>\n
B.   Sen, D. N. Mukherjee and Somendra Chandra Bose, for the
\nappellant.\n<\/p>\n
K.   R.\t Chaudhuri and K., Rajendra Chowdhary,\tfor  respon-
\ndents Nos. 2, 3 and 6.\n<\/p>\n
Santosh\t Chatterjee, G. S.Chatterjee for Sukumar  Basu,\t for
\nrespondent No. 1.\n<\/p>\n
The Judgment of the Court was delivered by
\nP.   Jaganmohan\t Reddy, These appeals are by  a\t certificate
\nunder  Art. 132(C) of the Constitution of India against\t the
\njudgment of the Calcutta HIgh Court, which have by an  order
\nof  this  Court dated 25-8- 1969 been consolidated  for\t the
\npurpose of hearing. The short question for determination  in
\nthese  appeals in whether under the provisions of  the\tWest
\nBengal Board of Secondary Education Act 5 of 1963 read\twith
\nRule  8\t of  the West Bengal Board  of\tSecondary  Education
\n(Appointment  of Secretary) Rules, the appellant I could  be
\ndischarged from the service of the Board of Education.\t The
\nappellant   was\t an  office  Superintendent  of\t the   Board
\nconstituted under the West Bengal Secondary Education Act 37
\nof  1950  (hereinafter\tcalled\t‘the  1950  Act’).   He\t was
\npromoted  as  Assistant Secretary on  12-7-1952,  as  Deputy
\nSecretary  on 18-6-56 and on the 1st\/8th August 1962 he\t was
\nappointed as Secretary on probation and confirmed on  1-8-63
\nby  an\torder  dated  the 24th\tAugust\t63.   The  appellant
\ncontinued  in  this office till 25th November  66  when\t his
\nservices  were\tdispensed  with, with  immediate  effect  on
\npayment of 3 months salary in lieu of notice.  In his  place
\nthe  Government\t by  its order of the  same  date  appointed
\ntemporarily respondent 6-D.  Mazumdar, Director of  Consumer
\nGoods, West Bengal as Secretary for a period not exceeding 6
\nmonths\tfrom  the  date on, which be  takes  charge  of\t the
\noffice.\t As we have earlier mentioned the initial Act  under
\nwhich  his  appointment was the Act of 1950.   Subseq  hotly
\nanother\t Act known as the West Bengal  Secondary  Education
\n(Temporary  Provision)\tAct  24 of 1954 was  passed  by\t the
\nLegislature,  by which the Board created by the Act of\t1950
\nwas  superseded\t and its powers were vested in\tan  adminis-
\ntrator\tappointed  by  the State  Government.\tIt  was\t the
\nadministrator who had appointed the petitioner on probation.
\nOn  the 20th February 63 the West Bengal Board of  Secondary
\nEducation Act 5 of 1963 (hereinafter called ‘the 1963  Act’)
\nwas  passed which came into force on 1-1-1964.\tBefore\tthis
\nAct came into force
\n 899<\/span>
\ncertain\t regulations were made on 12-12-63 under the Act  of
\n1950,  rule 4 of which dealt with the conditions of  service
\nwhich  were similar to those in Rule 4 of  1951\t regulations
\nmade  on 19-9-51.  Under regulation 4 of 1951 the Board\t had
\npower to dispense with the services of the Secretary or\t any
\nofficer by giving 3 months notice or on payment to him of  3
\nmonths\tsalary in lieu of notice.  Act 22 of 1954 it may  be
\nmention\t did not abolish the Board but only  authorised\t the
\nAdministrator to carry on the duties and functions vested in
\nthe  Board  so that the appellant when he was  appointed  on
\nprobation by the Administrator was an employee of the Board.
\nThe  1963 Act by clause 1 of Sec. 46 repealed both the\t1950
\nAct  as well as the temporary provisions Act 22 of 1954\t and
\nby  sub-clause (2) it provided that “all Officers and  other
\npersons\t in  the  employment  of  the  Board  of   Secondary
\nEducation  immediately before the commencement of  this\t Act
\nshall until provision is made continue in the service of the
\nBoard’.\t  It  may  here\t be  mentioned\tthat  prior  to\t the
\nenforcement of the Act on 1-1-64 the Government had made and
\npublished  rules  under that Act known as  the\tWest  Bengal
\nSecondary  Education (appointment of Secretary) Rules  1963,
\nrule 8 whereof is in the following terms
\n.lm15
\n” The State Government shall have the power to dispense with
\nthe services of the- Secretary on three months’ notice or in
\nlieu  of such notice on payment of three months’ salary\t and
\nalso  to  discharge or dismiss the  Secretary  from  service
\nwithout notice or compensation in the event of misconduct or
\nof  a  breach of any of the duties attached to the  post  of
\nSecretary”.\n<\/p>\n
It is in exercise of powers vested under this Rule that\t the
\nGovernor dispensed with the services of the appellant  which is no
\nw challenged.. The learned Advocate for the  appellant
\ncontends inter-alia that :-\n<\/p>\n
(i)  the rule under which the appellant’s services have been
\ndispensed  with have no application to the case of a  person
\nwho  continues in service under Sec. 46 (2) (c) of the\t1963
\nAct,\n<\/p>\n
(ii) being an employee of the Board, his services could only
\nbe terminated by the Board and not by the State Government,\n<\/p>\n
(iii)\t  -Sec.\t 46(2)\t(c) envisages that till\t some  other
\nemployment  is\tfound  for all those  persons  who  were  in
\nemployment  of the Board of Secondary Education\t before\t the
\ncommencement of the 1963 Act, they cannot be discharged.
\nFor an appreciation of these contentions it is necessary  to
\nexamine the relevant provisions of the 1963 Act.
\nUnder  Sec.  2(a) the Board means the West Bengal  Board  of
\nSecondary Education established under the 1963 Act.  Section
\n3<\/span>
\n90 0
\nempowers  the State Government as soon as may be  after\t the
\nAct  comes into force to establish the Board named the\tWest
\nBengal Secondary Education Board.  The Board shall be a body
\ncorporate  with\t perpetual  succession and  a  common  seal.
\nSection\t 4 deals with the composition of the Board which  it
\nmay  be stated is totally different to that which  comprised
\nthe  Board, under the 1950 Act.\t The appointment of  persons
\nin  the service of the Board and their condition of  service
\netc.  are  the subject matter of Section  16,  the  relevant
\nprovisions of which are as follows :-\n<\/p>\n
\t      (1)   The\t Board\tshall have a  Secretary\t who
\n\t      shall be appointed by the State Govt.
\n\t      (2)   The\t  Board\t may  appoint\tsuch   other
\n\t      officers\t and   servants\t as   it   considers
\n\t      necessary\t for  carrying out the\tpurposes  of
\n\t      this Act.\n<\/p><\/blockquote>\n
\t      (3)   The terms and conditions of\t appointment
\n\t      and the scales of pay and allowances, if\tany,
\n\t      shall-\n<\/p><\/blockquote>\n
\t      (a)   as respect the Secretary be such as\t may
\n\t      be prescribed, and\n<\/p><\/blockquote>\n
\t      (b)   as\t respect  the  other  officers\t and
\n\t      servants\tbe  such  as may  be  determined  by
\n\t      regulations.\n<\/p><\/blockquote>\n
\t      (4)<\/span><\/p>\n
\t      Sub-sec.\t1  ) of Sec. 45 empowers  the  State
\n\t      Govt.  after  previous  publication,  to\tmake
\n\t      rules  for carrying out the purposes  of\tthis
\n\t      Act and sub-sec. (2) (f) provides that :
\n\t      “In  particular, and without prejudice to\t the
\n\t      generality of the foregoing power, such  rules
\n\t      may  provide for all or any of  the  following
\n\t      matters, namely-\n<\/p><\/blockquote>\n
\t      (f)   the terms and conditions of appointment,
\n\t      the  scale of pay and the rules of  discipline
\n\t      relating to the Secretary of the Board.\n<\/p><\/blockquote>\n
It  is under the last mentioned provision 45 (2) (f  )\tthat
\nthe  rules  were  made,\t rule 8 of  which  we  have  already
\nextracted.   It\t will  thus  ‘be  seen\tthat  the  1963\t Act
\nconstituted an entirely new Board of Secondary Education and
\nafter  repealing the old Acts it continued the\tservices  of
\nthe  Officers  and other persons in the\t employment  of\t the
\nBoard  of Education under the old Act until other  provision
\nis made.  It may be stated that the power of appointment  of
\na Secretary for the Board under Sec. 16 is not vested in the
\nBoard  but in the Govt as such there can be no\tvalidity  in
\nthe  contention\t of the learned Advocate for  the  appellant
\nthat the Govt. has no power to appoint a Secretary in place
\n 901<\/span>
\nof  the\t appellant who according to him still  continues  as
\nSecretary  under the Board.  As we read the  provisions,  we
\nare  clear in our minds and it admits of no doubt  that\t the
\nBoard  has  no. power to appoint a Secretary, nor  has\tthe,
\nappellant  a right to. the post as such.  All that  the\t Act
\nprovides  for  is the continuance of the  employees  of\t the
\nprevious Board till other arrangements are made, namely till
\na  Secretary  is  appointed by the Govt.  In  our  view\t the
\nappointment  of\t the new Secretary can be traceable  to\t the
\npowers vested in the Govt. under Sec. 16 irrespective of the
\npower  vested  under  the  rules.   The\t argument  that\t the
\nappellant being an employee of the Board his services  could
\nonly  be terminated by the Board and not by the State  Govt.
\nhas no validity in that the old rules have been repealed and
\nthe new Board ha,, no power to appoint a Secretary.  It\t has
\nbeen urged before us that a decision of this Court in  State
\nof  Assam v. Kripanath Sharma & Ors.<\/a> etc.(1), lends  support
\nto  the contention of the learned Advocate.  That  case\t was
\nunder  the Assam Elementary Education Act 1962 the  relevant
\nprovisions  of\twhich  are not\tin  pari-material  with\t the
\nprovisions of the Act which we ate called\t  upon\t  to
\nconsider.  The\trespondents  in that  case  were  Elementary
\nEducation  School Teachers appointed under the\tAssam  Basic
\nEducation  Act\t1954.  That Act was repealed  by  the  Assam
\nElementary  Education Act 1962 under which the Board was  to
\nbe  constituted\t and  in  the place  of\t the  School  Boards
\nfunctioning    under the 1954 Act, the Deputy Inspectors  of
\nSchools were made\t Assistant  Secretary  of  the\tsaid
\nBoard  within  their  respective  jurisdiction.\t Sec.  34(2)
\nprovided  that all the Elementary School Teachers  appointed
\nunder  the 1954 Act would be taken over by the\tState  Board
\nand  who under Section 38 were further deemed to  have\tbeen
\nemployed  by the said Board. The statute therefore  provided
\nthat they were the employees of the Board. Sec. 46(2)  (c)
\nhowever merely continues them and does not deem the    to be
\nemployees of the Board. What happened in that case was\tthat
\nthe Board merely passed a resolution “that all teachers\t who
\nare  not  Matriculates or who have not passed  the  Teachers
\ntest\t  but who are working as Teachers in School shall be
\ndischarged   with  effect  from\t 31-3-63”.   The   Assistant
\nSecretary without   obtaining  specific\t sanction  from\t the
\nBoard issued orders for their\t   discharge which he had no
\npower to do. In those circumstances\tthe\tpower\t  to
\nterminate the services being in the Board, it was      held
\nthat the order of termination by the Assistant Secretary was
\ninvalid.  This case does not help the appellant. Lastly\t the
\nearned Advocate sought to press in aid a Judgment of a Bench
\nof  the Calcutta High Court in Bidyut Kr. Biswas &  Ors.  V.
\nWest\t  Bengal Board of Secondry Education & Ors.(2)\t  in
\nwhich the
\n(1) [1967] 1 S.C.R. 499.  (2) C.W.N. Vol. 73 (1968-(9) 417.\n<\/p>\n
902<\/span><\/p>\n
provision of Sec. 46(2) (c) of the 1963 Act were dealt\twith
\nin  support  of\t his  contention that  the  persons  in\t the
\nemployment  of Board of Secondary Education under  the\t1950
\nAct could only be discharged if an alternative employment is
\nfound  for them inasmuch as the words until other  provision
\nis made’ justifies that conclusion.  This point has not been
\nraised\tin  the Writ Petition nor has it been  urged  either
\nbefore the Single Bench or before the Division Bench of\t the
\nHigh  Court  and is sought to be raised for the\t first\ttime
\nbefore\tthis  Court.   We cannot permit him to\tdo  so,\t and
\ntherefore  express no views on this aspect of the case.\t  In
\nthe   result   the  appeals  are  dismissed   but   in\t the
\ncircumstances without costs.\n<\/p>\n
V.P.S.\t\t    Appeals dismissed.\n903<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Biswanath Banarjee vs State Of West Bengal & Ors on 2 March, 1971 Equivalent citations: 1971 AIR 1038, 1971 SCR (3) 897 Author: P J Reddy Bench: Reddy, P. Jaganmohan PETITIONER: BISWANATH BANARJEE Vs. RESPONDENT: STATE OF WEST BENGAL & ORS. DATE OF JUDGMENT02\/03\/1971 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-225349","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBiswanath Banarjee vs State Of West Bengal & Ors on 2 March, 1971 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/biswanath-banarjee-vs-state-of-west-bengal-ors-on-2-march-1971-3\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Biswanath Banarjee vs State Of West Bengal & Ors on 2 March, 1971 - 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