http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: STATE OF ASSAM ETC.

       Vs.

RESPONDENT: KRIPANATH SARMA & ORS.  ETC.

DATE OF JUDGMENT: 23/09/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SHELAT, J.M. MITTER, G.K.

CITATION:  1967 AIR  459            1967 SCR  (1) 499  CITATOR INFO :  R          1971 SC1038  (5)

ACT: Assam  Elementary  Education  Act (30 of  1962),  ss.  14(3) (iii), 34(2), 38 and 55(2), and Assam General Clauses Act (2 of  1915),s.18-Authority  to  appoint  and  dismiss   school teachers-Who  has-Delegation of authority to dismiss-How  to be made.

HEADNOTE: The  respondents were Elementary School  teachers  appointed under  the  Assam Basic Education Act, 1954.   The  Act  was repealed by the A,-%am Elementary Education Act, 1962, which came into force on 5th October, 1962.  Under the 1962-Act  a State  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 Secretaries of the State Board within their respective jurisdictions.   Section 34(2)  provide,%  that all the  Elementary  School  teachers appointed  under  the 1954-Act would be taken  over  by  the State  Board  and s. 38 provides that  the  school  teachers shall  be deemed to have been employed by the  State  Board. In November 1962, the State Advisory Board, which was  cons- tituted  under the 1954-Act and which continued to  function even  after 5th October 1962 (because the State Board  under the latter Act was not yet constituted) passed a -resolution that  all teachers who were not matriculates or who had  not passed  the Teachers’ test should be discharged with  effect from  31st March 1963.  In December 1962, the  Secretary  of the  Advisory  Board  communicated  the  resolution  to  the Assistant  Secretaries  and  requested  them  to  submit   a statement,  before  20th April 1963, showing  the  names  of teachers,  who  were non-matries or who had not  passed  the test  and who were retained after 31st March  1963,  stating the  reasons  for their retention.  Between April  1963  and September  1963,  the Assistant Secretaries  issued  letters intimating   the  respondents  that  their   services   were terminated.  The respondents thereupon filed writ  petitions in the -High Court which were allowed. In appeal to this Court. HELD  :  (i)  The  Assistant Secretaries  had  no  power  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

terminate the services of the respondents. Under s.14(3)(iii) of the 1962-Act, the power of appointment of  an  elementary  school  teacher  is  in  the   Assistant Secretary though the power has to be exercised on the advice of  the Committee constituted under s. 16. Even if the  word "advice" is equated to "recommendation", the Committee  only recommends  and  it is the Assistant Secretary  who  is  the appointing  authority.  Therefore, if be was the  appointing authority  he could dismiss those appointed by him with  the aid  of s. 18 of the Assam General Clauses Act, 1915,  under which,  unless a different intention appears, the  power  to appoint includes the power to dismiss; and it cannot be said that  a different intention appears from the fact  that  the appointment  has to be made on the recommendation or  advice of-the  Committee.   But the respondents, in fact  had  been appointed before the 1962-Act came into force and could  not possibly have been appointed by the Assistance  Secretaries, for there were no such authorities in the earlier  enactment repealed by the 1962-Act.  Nor, can the appellant rely on s. 500 55(2)  of  the 1962-Act, under which all  appointments  made under  the 1954-Act shall be deemed to have been made  under the 1962-Act, because,, the specific provisions contained in ss.  34(2) and 38 lay down that the teachers would be  taken over  and deemed to have been employed by the  State  Board. [506 E-H; 507 B-D; E-H] (ii) The  services  of  the  respondents  could  have   been terminated by the.  State Board, but the orders  terminating the services in the present case were not those of the State Board  but of the Assistant Secretaries and  were  therefore invalid. The  resolution  of the State Advisory  Board  of  November, 1962,  and  the letter of its Secretary,  addressed  to  the Assistant  Secretaries  in December, 1962, were  not  orders terminating the services of any of the respondents because : (i)  when  the resolution was passed there was  no  list  of teachers  who  were non-matrics or who had  not  passed  the Teachers’  test and legally, such a resolution could not  be read  as  an order dismissing persons whose names  were  not even known to the authority passing the resolution; (ii)  if it  really amounted to an order of discharge it should  have been  communicated  to  the  respondents  for  without  such communication it was of no use; (iii) the services of not  a single  teacher were in fact terminated on 31st March  1963; (iv)  the fact that the resolution was communicated  to  the Assistant  Secretaries and not to any teacher shows that  it merely   laid  down  principles  to  be  followed  for   the termination of services of certain teachers; (v) the  letter permitted the Assistant Secretaries to retain, if necessary, teachers  who  were not matrics or who had  not  passed  the test;  and (vi) the letters terminating the services of  the respondents were in fact issued after 31st March 1963.  [508 E-H; 509 C, E, F] (iii)  The  resolution  could not be taken to  amount  to  a delegation to the   Assistant  Secretaries,  by  the   State Board., of its authority to terminate the    services     of teachers    after   laying   down   principles   for    such termination.The  resolution ha-, not a word to show that  it was  so  delegating-assuming  that  such  a  delegation  was possible.   The  fact  that a copy  of  the  resolution  was addressed  by  the Secretary to  the  Assistant  Secretaries could  not  mean that the authority was  so  delegated.   If delegation was possible, it could only be made by the  State Board itself by a resolution and not by its Secretary.  [510 C-E]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

(iv)   It  could  not  also  be  said  that  the   Assistant Secretaries  were only carrying out the instructions of  the State  Board  contained  in the  letter  of  December  1962. Either the services had to be terminated by the State  Board itself,  which  was  not done; or the  services  had  to  be terminated   by  the  Assistant  Secretaries  to  whom   the authority   was  delegated  (if  such  a   ,delegation   was possible),  but that also was not done.  There was no  third way  in  which  the resolution of  November  1962  could  be implemented   by  the  Assistant  Secretaries  unless   they themselves  bad the power to terminate the services; but  in the instant case, they had no such authority. 15 1 0 F-H]

JUDGMENT: CIVIL,APPELLATE   JURISDICTION:Civil’Appeals    Nos.950-957, 1141-1143 and 1703-1712/1966. Appeals by special leave from the judgement and order  dated September  9, 1964 of the Assam and Nagaland High  Court  in Civil  Rules Nos. 115, 128, 134, 136, 151, 161, 197 and  160 of 1963. 501 S.  V.  Gupte,  Solicitor-General and Naunit  Lal,  for  the appellant n C. As.  Nos. 950-957 of 1966. Naunit  Lal,  for appellants in C. As.  Nos.  1141-1143  and 17031712 of 1966. Hareshwar  Goswami,  K. Rajendra Chaudhury and K.  R.  Chau- dhury, for respondent No. 1 in C. A. No. 950 of 1966. K.  R. Chaudhury and K. Rajendra Chaudhury,  for  respondent No. 1 in C. As.  Nos. 952 and 953 of 1966. D. N. Mukherjee, for respondent No. 1 in C. A. No. 1142  and respondents Nos. 2-8, 10, 11, 13-18, 20-22, 24, 26 and 27 in C.A. No. 1143 of 1966. Vineet  Kumar, for respondent No. 2 in C. As.  Nos.  950-957 of 1966. The Judgment of the Court was delivered by Wanchoo,  J.  These twenty-one appeals  (eleven  by  special leave  and  ten on certificates granted by the  High  Court) arise from the judgment of the Assam High Court and will  be dealt  with  together, as they raise common  questions.   We shall  therefore set out the facts of one case  relating  to Kripanath Sarma in C.A. 950. In  the year 1947 the Assam Legislature passed an Act  known as  the  Assam Primary Education Act, No. XIII of  1947,  in order to provide for development of primary education in the State.   That Act was repealed by the Assam Basic  Education Act, No. XXVI of 1954 (hereinafter referred to as the  1954- Act) which was passed to provide for development, expansion, management and control of basic education and with a view to introduce  gradually  universal, free and  compulsory  basic education  in the State.  The 1954-Act provided for a  State Advisory  Board for Basic Education hereinafter referred  to as the State Advisory Board).  It further made provision for the  constitution  of Regional Boards  for  Basic  Education known as School Boards for each region in a district.  These School  Boards  were  to control basic  education  in  their regions and among the powers conferred on School Boards  was the  power to appoint and punish basic school  teachers  and attendance  officers.   The  scheme  of  the  1954-Act   was therefore  to  entrust  the conduct of  basic  education  to School Boards.  The State Advisory Board was a central  body whose function was to advise the State Government on matters relating  to the control and direction of the activities  of School  Boards, the making of grants to School  Boards,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

method of recruitment and the conditions of service of basic school  teachers  and attendance officers, the  training  of teachers and the making of provision for such training, 502 the  curriculum,  duration, standard and syllabus  of  basic education,  the  preparation, publication and  selection  of text books, the medical inspection and treatment of children and  any  other  matter  which  the  State  Advisory   Board considered  necessary for carrying out the purposes of  that Act  fully and effectively or on which the State  Government might consult the State Advisory Board. The 1954-Act was repealed by the Assam Elementary  Education Act, No. XXX of 1962, (hereinafter referred to as the  Act). In the present appeals we are mainly concerned with the Act. Section  3  of the Act provides for the  constitution  of  a State  Board for Elementary Education (hereinafter  referred to  as  the  State Board) and the State  Board  was  made  a corporate body with perpetual succession and a common  seal. The functions of the State Board were defined in s. 10 which inter  alia  provides that the State Board  shall  lay  down principles  for  allocation of grants for carrying  out  the purposes of the Act to local authorities, lay down procedure and  conditions and hold such tests as may be necessary  for recruitment of teachers of elementary schools on such  terms and  conditions  of service as may be prescribed,  lay  down conditions  for recognition, expansion and  amalgamation  of schools and openings of schools, and do any other act  which it considers necessary for carrying out the purposes of  the Act fully and effectively.  Under s. 15 the State Board  has to  perform  its  duties  and carry  out  its  functions  in accordance with such rules of business as may be prescribed. The main change in the Act was that the School Boards  func- tioning under the 1954-Act were abolished and in their place the Deputy Inspectors of Schools, by virtue of their office, were made Assistant Secretaries of the State Board with  the same  headquarter  and jurisdiction as they  had  as  Deputy Inspectors  of Schools.  They were inter alia authorised  to operate  the  fund  placed at their disposal  by  the  State Board, to appoint their office staff, and ill particular  by cl. (iii) of s. 14 (3)-               "to appoint teachers in recognised schools  on               the  advice of a Committee constituted by  the               State Board under section 16 and transfer them               as necessary and also grant such leave,  other               than   casual  leave,  to  them  as   may   be               admissible." Section 16 authorised the State Board to constitute Advisory Committees  for the purpose of s. 14 (3)(iii).  The Act  was to  come into force at once and it actually came into  force from  October  5, 1962.  Section 34(2) of the  Act  provides that  as soon as it came into force all teachers  and  other employees  of schools maintained by School Boards  would  be taken over by the State Board subject to the condition  that the total emoluments of the employees at the time they 503 were taken over would be protected and their seniority would be maintained.  Section 38 provides that-               "all  teachers existing or to be appointed  in               any  Elementary  School recognised  under  the                             Act,  except  in  the case  of  the  A utonomous               Districts,  shall  be  deemed  to  have   been               employed by the State Board." Section  54 is the rule making provision and gives power  to the  State  Government to make rules for  carrying  out  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

purposes of the Act.  Section 55 provides for the repeal  of the 1954-Act and sub-s. (2) thereof provides for savings  in the following terms:-               "Notwithstanding  the repeal  all  authorities               constituted,  appointments, rules,  orders  or               notifications made under the said Act shall be               deemed  to be constituted or made  under  this               Act,  and  continue to function or  to  be  in               force  until actions under the  provisions  of               this Act are taken." It will be noticed that the saving clause provides that  all authorities  constituted under the 1954-Act shall be  deemed to.  be  constituted  under the Act and  shall  continue  to function  until  action under the provisions of the  Act  is taken.   It  appears that by virtue of  this  provision  the State  Advisory Board continued even after October 5,  1962, as apparently it took sometime to constitute the State Board under the Act. On  November  20, 1962, the State Advisory Board  passed  a- resolution, the relevant part of which is in these terms-               "Subject  to the exceptions enumerated  below,               all  teachers who are not matriculates or  who               have not passed the Teachers’ Test but who are               working  as  teachers  in.  schools  shall  be               discharged with effect from 31-3-1963." It is unnecessary to refer to the exceptions, for we are not concerned with them. in pursuance of this resolution, the Secretary to the  State Advisory Board wrote a letter to all the Secretaries, School Boards,  who  were no other than the  Deputy  Inspectors  of Schools  and who became Assistant Secretaries of  the  State Board  under s. 14 of the Act.  This letter began  with  the following paragraph:-               "In  inviting  a  reference  to  the   subject               indicated  above (the subject indicated  being               removal of non-T.T. and undermatric L.P.  (Jr.               Basic)  Teachers and appointment of L.P.  (Jr.               Basic) Teachers"),               "I have the honour to state that  henceforward               the  following principle adopted by the  State               Advisory  Board  for Basic  Education  in  its               meeting held on 20th November, 6sup, Cl/66-4 504 1962  should  be strictly followed.  In case of  any  doubt, this office may be approached for clarification." Then  followed a copy of the resolution passed  on  November 20,  1962.  The letter also contained directions as  to  the policy with regard to appointments in future vacancies  with which we are not concerned.  It concluded with the following paragraph:-               "Further,  you  are  requested  to  submit   a               statement  showing  the names of  non-T.T.  or                             under-matric  teachers,  if  any,  aft er   31st               March,  1963  stating the  reasons  for  their               retention.   In case there will be none  after               the  said  date, please submit a  nil  report.               This  report  should  invariably  reach   this               office by the 20th April 1963 at the latest." It  appears  that after March 31, 1963, action began  to  be taken  on  these  instructions and a letter  was  issued  to Kripanath  Sarma  on April 9, 1963 , the  relevant  part  of which is in these terms:-               "Under  Departmental  Instructions   regarding

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

             removal of under-matric and non-T.T. Teachers,               service of Shri Kripanath Sarma, H.P.  Janigog               No.  1, L.P. School is hereby terminated  with               immediate effect." We  may  add that similar letters were  addressed  to  other teachers  who are respondents in the present appeal,  though they  were  addressed in some cases in May 1963 and  in  one case  as  late as August 1963.  In a few  cases  letters  of removal  were  addressed to some of the respondents  in  the present  appeals  as  late as September  1963.   But  it  is remarkable  that  no letter was addressed to  anyone  before March  3  1,  1963  intimating that  his  service  would  be terminated from March 31, 1963. On termination of the services of teachers who are now  res- pondents  in  these  appeals before us,  a  number  of  writ petitions  were  filed  in the High  Court  challenging  the orders  of  termination.   The  main  point  raised  in  the petitions  was  that  the Secretary,  School  Board  or  the Assistant  Secretary, State Board under whose signature  the letters of termination of service were issued had no  autho- rity  under  the  Act  to  terminate  the  services  of  the respondents.  It was also contended in the alternative  that the  respondent-teachers were holding civil posts under  the State and termination of their services was in violation  of the provision of Art. 311(2) of the Constitution. These  petitions were opposed on behalf of the State and  in some cases by the State Board.  Their case was that under s. 14 (3)(iii) of the Act, the Deputy Inspectors of Schools who are  the  Assistant Secretaries of the State Board  had  the power  to  terminate  the  services  of  teachers.   In  the alternative, it was contended that even if that was not  so, the teachers were employees of the State 505 Board and therefore under the general law it was open to the State  Board to terminate their services and that  was  what was  done  in  effect.  Lastly, it was  contended  that  the respondent-teachers  were not holding civil posts under  the State and therefore Art. 311(2) of the Constitution did  not apply in their case. The  High  Court  did not  decide  whether  the  respondent- teachers  were holding civil posts, whether Art.  311(2)  of the Constitution applied to them, and whether there had been a  breach  of the provisions thereof. It  was,  however,  of opinion  that  s.  14(3)(iii)  did not  give  power  to  the Assistant  Secretary (assuming that the letters  terminating services   of  the  respondents  were  issued   under   that provision)  to terminate services of teachers who  had  been taken  over under s. 34(2) of the Act and who had  not  been appointed under s. 14(3)(iii) by the Assistant Secretary. It held  therefore that the letters to the  respondent-teachers terminating  their  services whether issued in the  name  of Secretary, School Board or Assistant Secretary, State Board, were beyond his power as he could not terminate the services of  these teachers. As to the alternative  argument  namely, that  these teachers were the employees of the  State  Board and  it  was  the State Board  which  had  terminated  their services  the  High Court held that  orders  of  termination could  not  be  held valid as the State  Board  which  is  a statutory body had not acted under the provisions of the Act or  the Rules under which a statutory body had to  act.  In’ consequence  the  petitions  were  allowed  and  the  orders terminating the services of the respondents were set  aside. Thereupon the appellants came to this Court in some cases on certificates obtained from the High Court and in  others  on special leave obtained from this Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

The main contention before us on behalf of the appellants is two-fold.  In  the  first place it is urged  that  under  s. 14(3)(iii)  of the Act read with s. 18 of the Assam  General Clauses Act, No. 11 of 1915, (hereinafter referred to as the 1915-Act),   the  orders  of  termination  passed   by   the Secretary,  School Board or the Assistant  Secretary,  State Board were within his power. In the alternative, it is urged that the respondents were in any case employees of the State Board  under the Act and their services could be  terminated by the State Board and that was in effect what was done  and therefore  the termination of their services  was  perfectly valid. We  shall  first consider whether the  Deputy  Inspector  of Schools,in  his capacity as the Assistant Secretary  of  the State Board, could terminate the services of the respondents in  view of s. 14(3)(iii) of the Act read with s. 18 of  the 1915-Act.  We  have already set out S.14(3)(iii).  It  gives powers  to  appoint  teachers to  the  Deputy  Inspector  of Schools  as the Assistant Secretary of the  State  Board.The argument, based on s. 18 of the 1915-Act, is that the  power to  appoint  includes the power to suspend  or  dismiss  and therefore the 506 Assistant Secretary had the power to terminate the  services of the respondents.  Section 18 of the 1915-Act is in  these terms:-               "Where,  by  any  Act, a  power  to  make  any               appointment  is  conferred,  then,  unless   a               different  intention  appears,  the  authority               having  power  to make the  appointment  shall               also  have  power to suspend  or  dismiss  any               person  appointed  by it in exercise  of  that               power. The High Court referred to S. 16 of the General Clauses Act, No.  X of 1897, though strictly speaking it is S. 18 of  the 1915-Act  which has to be applied.  The High Court-  was  of the  view that as appointments under S. 14 by the  Assistant Secretary  had  to  be made on the advice  of  the  Advisory Committee, the relevant provision in the General Clauses Act was  of  no  avail to confer a power  of  dismissal  on  the Assistant  Secretary  under  S. 14(3)(iii),  for  that  only applies  unless  a different intention  appears.   The  High Court thought that, as the Assistant Secretary did not  have complete  power to appoint teachers and could only do so  on the advice of the Advisory Committee, there was a  different intention  in s. 14(3)(iii), and that was that no  dismissal could  be made by the Assistant Secretary because he had  in reality no complete power to appoint.  It is urged that this view of the High Court is incorrect. Now as we read S. 14(3)(iii) of the Act, it is obvious  that the power of appointment is only in the Assistant Secretary, though  that power has to be exercised on the advice of  the Committee constituted under s. 16 of the Act.  Even assuming that the recommendation of the Committee is necessary before appointment  is  made by the Assistant Secretary,  the  fact still  remains that it is not the Committee which  appoints, and the appointment is made only by the Assistant Secretary. Even  if the word "advice" in this provision is  equated  to the  word  "recommendation",  it is  still  clear  that  the Committee only recommends and it is the Assistant  Secretary who is the appointing authority on the recommendation of the Committee.   It may be that the Assistant  Secretary  cannot make the appointment without the advice or recommendation of the Committee.  Even so, in law, the appointing authority is only  the  Assistant Secretary, though this power is  to  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

exercised on the advice or recommendation of the  Committee. In these circumstances, it cannot be said that there is  any different  intention  appearing  from  the  fact  that   the appointment  has to be made on the recommendation or  advice of  the Committee.  The appointing authority would still  be the  Assistant  Secretary and no one else, and there  is  no reason  why,  if he is the appointing authority,  he  cannot dismiss those appointed by him with the aid of S. 18 of  the 1915Act.   We cannot therefore agree with this view  of  the High Court. But  there is another difficulty in the present  case  which stands  in.  the way of the Assistant Secretary  having  the power to dismiss 507 teachers  who had been taken over under s. 34(2) of the  Act and thus had been appointed before the Act came into  force. Section  18 of the 1915-Act says that the  authority  having power to make an appointment shall have the power to suspend or  dismiss any person appointed by it in exercise  of  that power.Therefore  the  authority  which  appoint  scan   only dismiss such persons as have been appointed by it. It cannot dismiss  persons appointed by any other authority, for  such persons have not been appointed by it in the exercise of its power  as appointing authority.  In the present case, as  we have  already  pointed  out, the  office  of  the  Assistant Secretary of the State Board was created for the first  time by  the  Act.   Therefore, all those persons  who  had  been appointed before the Act came into force could not  possibly be  appointed by the Assistant Secretary, for there  was  no such authority in the earlier enactment repealed by the Act. In  the earlier Act the appointing authority was the  School Board,  for  there was no Assistant Secretary of  the  State Advisory  Board  thereunder. Therefore  a  person  appointed before the Act came into force by the School Board cannot be said  to have been appointed by the Assistant  Secretary  of the State Board or its predecessor the State Advisory Board, for there was no such authority in the earlier enactment. In the  circumstances  we  are of opinion  that  the  Assistant Secretary  could not dismiss teachers appointed  before  the Act  came  into  force,  for there  was  no  such  authority existing before that. It   is  however  urged  that  s.  55  provides   that   all appointments under the 1954-Act shall be deemed to have been made under the Act and therefore the appointments under  the 1954-Act  by the School Boards must be deemed to  have  been made  by the Assistant Secretary under s. 14(3)(iii) of  the Act.  We  are  of opinion that  this  contention  cannot  be accepted in view of the specific provision contained in  the Act  under s. 34(2) and s. 38. Section 34(2) lays down  that all  teachers and other employees of schools  maintained  by the  School  Board would be taken over by the  State  Board. This  being  a specific provision relating to  teachers,  we cannot  take  recourse  to  the  general  deeming  provision contained  in  s.  55(2)  with  respect  to  appointment  of teachers and other employees of schools maintained by School Board.  Further  s. 38 specifically says that  all  teachers then  existing would be deemed to have been employed by  the State Board. Reading therefore s. 34(2) and s. 38  together, the  conclusion is inevitable that there is no occasion  for the  application  of the deeming provision in s. 55  in  the case  of these teachers. In the face of these  two  specific provisions  the  general deeming provision contained  in  s. 55(2)  cannot be used to come to the conclusion  that  those teachers  who were existing from before are to be deemed  to have  been  appointed by the Assistant  Secretary  under  s.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

14(3)(iii).  We  are therefore in agreement  with  the  High Court,  though  for  slightly different  reasons,  that  the services of the respondent-teachers could not be  terminated by the Assistant 508 Secretary of the State Board under s. 14(3) (iii) of the Act read with s.18 of the 1915-Act. This brings us to the alternative argument, namely,  whether the  respondents  have been dismissed by  the  State  Board. There is no doubt that reading s. 34(2) and s. 38  together, the existing teachers were taken over by the State Board and became  its  employees.  Therefore, as their  employer,  the State Board would have power under the general law of master and  servant to terminate their services unless  that  power was  in any way circumscribed by statute.  The case  of  the respondents is not that that power of the State Board is  so circumscribed (subject of course to the argument that  these employees are protected under Art. 311 of the Constitution); their  case is that the State Board never  terminated  their services,  and  that the orders of termination  were  passed only  by the Assistant Secretary who had no authority to  do so.   On  the other hand, it is contended on behalf  of  the appellants  that  the  services  of  the  respondents   were terminated  by  the  State Board,  and  in  this  connection reliance is placed on the resolution of November 20, 1962 to which reference has already been made. The  question  that  arises therefore is  whether  the  said resolution  can  be said to have terminated the  service  of anyone  at  all.  It certainly begins by  saying  that  "all teachers who are not matriculates or who have not passed the Teachers’  Test but who are working as teachers  in  schools shall be discharged with effect from 31-3-1963".  It is  not in dispute that at the time when this resolution was  passed there  was no list of teachers who were not matriculates  or who  had  not  passed the Teachers’ Test  before  the  State Advisory Board . So the resolution in our opinion cannot  be read  as amounting to terminating anyone’s service and  must only  be read as laying down principles which would have  to be  applied  for  dispensing with the  services  of  certain teachers  from March 31,1963 if conditions mentioned in  the resolution  are satisfied.  Legally, a resolution like  this cannot  be read as an order dismissing persons  whose  names were  not  even known to the authority passing  it  If  this resolution  really  amounted  to an order  of  discharge  of particular  persons,  it should have  been  communicated  to them,  for without such communication it would be of no  use for the purpose of terminating the services of anybody: (see Bachittar  Singh v. The State of Punjab)(1).  It is  not  in dispute  that  this resolution was not communicated  to  any teacher  as such and obviously it could not be  communicated to  any teacher who might even be governed by its terms  for the  State Advisory Board did not know to  which  particular teachers it might or might not apply.  It must therefore  be read not as an order terminating the services of anybody but as an (1) [1962] 3 Supp. S.C.R. 713. 509 indication of policy to be pursued for discharge of teachers as from March 31, 1963. That  this is so is clear from the letter of  December,  15, 1962 to which reference has already been made.  This  letter was  addressed by the Secretary of the State Advisory  Board to  all the Secretaries of School Boards.   It  incorporated the  resolution of November 20, 1962, and treated it in  the opening part of the letter as enunciating for the future the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

principles to be strictly followed in the matter of  removal of non-T.T. and under-matric L.P. (Jr.  Basic) teachers  and appointment  of L.P. (Jr.  Basic) teachers.  The  very  fact that  this  letter was addressed to the Secretaries  of  all School  Boards  and  not  to  any  teacher  shows  that  the resolution, of November 20, 1962 did not terminate  anyone’s services but merely laid down principles to be followed  for termination  of services of certain teachers as  from  March 31, 1963, if the terms of the resolution applied.  We cannot therefore read either the resolution of November 20, 1962 or the letter of December 15, 1962 as an order terminating  the services of any teacher who may be non-T.T. or undermatric. Further  we may refer to the last paragraph of  this  letter which has a significance of its own.  It asks the Secretary, School Board to submit a statement showing the names of non- T.T. teachers or under-matric teachers, if any, after  March 31, 1963, stating the reasons for their retention.   Clearly neither   the  resolution  nor  the  letter  was   therefore terminating  the services of anyone, for the last  paragraph permitted  the  Secretaries of School Boards to  retain,  if necessary,  non-T.T. teachers or under-matric  teachers  and required  them to state the reasons why such retention  took place  after March 31, 1963.  If the resolution of  November 20,  1962 or the letter of December 15, 1962 terminated  the services  of any teacher in terms, such a paragraph  as  the last paragraph in the letter of December 15, 1962 could  not be  there.   It is also remarkable that services  of  not  a single teacher came to an end on March 31, 1963.The  letters intimating   to  the  teachers  that  their  services   were terminated began from April 9, 1963 and continued upto  some date in September 1963.  If the resolution of November  1962 or  the  letter  of December 15,  1962  had  terminated  the services of all teachers governed by it from March 31,  1963 we fail to understand how letters terminating their services were issued to various respondent-teachers on various  dates from  April  to  September  1963.   It  is  perfectly  clear therefore that the resolution did not terminate the services of any teacher; it merely laid down principles to be applied for  terminating services of teachers from March  31,  1963. We  should  have expected that if the State  Advisory  Board intended to terminate services of such teachers itself,  the names of non-T.T. or under-matric teachers should have  been called for by it before 510 March  31,  1963  and thereafter it  should  have  passed  a specific  resolution  terminating  the  services  of   those particular  teachers  and this resolution should  have  been communicated  to the teachers concerned.  If that  had  been done,  it  could  have been said that the  State  Board  had terminated  the services of the teachers concerned.  But  we cannot  possibly  read  the  resolution  or  the  letter  as terminating the services of any teacher at all.  They merely laid  down  principles which had to be applied later  on  by somebody else who was expected to terminate the services  of the teachers concerned. Then it is urged that the resolution may be taken to  amount to  a  delegation  by the State Board of  its  authority  to terminate services of teachers after laying down  principles for such termination.  We consider that there is no force in this  contention either.  The resolution has not a  word  to show that it was delegating the authority of the State Board for terminating services of teachers to any other authority, (assuming  that  such a delegation is possible).   There  is nothing  in  the resolution to show even if it  were  to  be treated  as  a delegation by the State  Board  to  terminate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

services of these teachers, to which authority such  delega- tion was being made.  The fact that a copy of the resolution was  addressed  to  the Secretaries, School  Boards  by  the Secretary, State Board cannot mean that authority was  being delegated to the Secretaries of School Boards, even assuming that  School  Boards could be functioning after  October  5, 1962, when the Act makes no provision for any School  Board. If  delegation was possible, that delegation had to be  made by  the  State Board itself by a resolution and not  by  the Secretary of the State Board. Nor   can  we  accept  the  argument  that   the   Assistant Secretaries were carrying out the instructions of the  State Board  contained in the letter of December 15, 1962, for  we can  only  see  in a case of this  kind  where  services  of teachers  were  terminated one of  two  possibilities,  i.e. either the services had to be terminated by the State  Board itself,  which  we  have shown did not take  place,  or  the services  had to be terminated by somebody else to whom  the authority  of  the  State Board was  delegated  (if  such  a delegation was possible at all) and that also we have  shown is  not  done.   We can see of no third  way  in  which  the resolution  of November 20, 1962 could be implemented  by  a subordinate authority, unless that subordinate authority had power itself to terminate the services of teachers.  We have already  held  that  the Assistant  Secretary  had  no  such authority under s. 14(3)(iii) of the Act read with s. 18  of the  1915-Act.  Therefore, the orders issued in the  present case  terminating  the services of  the  respondent-teachers were  invalid, for they were not orders of the  State  Board terminating 511 the  services  of the respondents; they must be held  to  be orders  of  the  Assistant Secretary who  had  no  power  to terminate the services of the respondents. The  appeals  therefore fail and are hereby  dismissed  with costs, one hearing fee. V.P.S.                  Appeals dismissed. 512