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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

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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  899 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

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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

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             (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

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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