Appeals Nos950 957 1141 1143 and 1703 17121966
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 section V Gupte Solicitor General and Naunit Lal for the appellant n C As
950 957 of 1966
Naunit Lal for appellants in C As
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 CA No 1143 of 1966
Vineet Kumar for respondent No 2 in C As
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 CA 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That Act was repealed by the Assam Basic Education Act No XXVI of 1954 hereinafter referred to as the 1954 Act which was passed to provide for development expansion management and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 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 section 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 section 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 section 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 section 14 3iii
The Act was to come into force at once and it actually came into force from October 5 1962
Section 342 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 purposes of the Act
Section 55 provides for the repeal of the 1954 Act and sub section
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 section 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 TT and undermatric LP Jr Basic Teachers and appointment of LP 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 Cl66 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 TT 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 removal of under matric and non TT Teachers service of Shri Kripanath Sarma HP Janigog No 1 LP 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 article 3112 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 section 14 3iii 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 article 3112 of the Constitution did not apply in their case
The High Court did not decide whether the respondent teachers were holding civil posts whether article 3112 of the Constitution applied to them and whether there had been a breach of the provisions thereof
It was however of opinion that section 143iii 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 section 342 of the Act and who had not been appointed under section 143iii 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
The main contention before us on behalf of the appellants is two fold
In the first place it is urged that under section 143iii of the Act read with section 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 Schoolsin his capacity as the Assistant Secretary of the State Board could terminate the services of the respondents in view of section 143iii of the Act read with section 18 of the 1915 Act
We have already set out S143iii
It gives powers to appoint teachers to the Deputy Inspector of Schools as the Assistant Secretary of the State Board
The argument based on section 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 section 16 of the General Clauses Act No X of 1897 though strictly speaking it is section 18 of the 1915 Act which has to be applied
The High Court was of the view that as appointments under section 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 section 143iii 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 section 143iii 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 section 143iii 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 section 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 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 section 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 section 342 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 section 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 section 143iii of the Act
We are of opinion that this contention cannot be accepted in view of the specific provision contained in the Act under section 342 and section 38
Section 342 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 section 552 with respect to appointment of teachers and other employees of schools maintained by School Board
Further section 38 specifically says that all teachers then existing would be deemed to have been employed by the State Board
Reading therefore section 342 and section 38 together the conclusion is inevitable that there is no occasion for the application of the deeming provision in section 55 in the case of these teachers
In the face of these two specific provisions the general deeming provision contained in section 552 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 section 143iii
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 section 143 iii of the Act read with s18 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 section 342 and section 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 article 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 311963 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 vs The State of Punjab1
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
SCR 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 principles to be strictly followed in the matter of removal of non TT and under matric LP Jr Basic teachers and appointment of LP 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 TT 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 TT 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 TT 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 1963The 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 TT 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 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 ie 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 section 143iii of the Act read with section 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
VPS Appeals dismissed


Summary:
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 342 provide that all the Elementary School teachers appointed under the 1954 Act would be taken over by the State Board and section 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 terminate the services of the respondents
Under s143iii 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 section 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 section 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 section 500 552 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 sections 342 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 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