Case: Biswanath Banarjee Vs. State Of West Bengal &amp; Ors

Education established under the 1963 Act. Section 3 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 Government. (2) The Board may appoint such other officers and servants as it considers necessary for carrying out the purposes of this Act. (3) The terms and conditions of appointment and the scales of pay and allowances, if any shall- (a) as respect the Secretary be such as may be prescribed, and (b) as respect the other officers and servants be such as may be determined by regulations. (4) xx xx xx5. Sub-section (1) of Section 45 empowers the State Government after previous publication, to make rules for carrying out the purposes of this Act and sub-section (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 Section 16 is not vested in the Board but in the Government as such there can be no validity in the contention of the learned Advocate for the Appellant that the Government has no power to appoint a Secretary in place 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 is for the continuance of the Employees of the previous Board till other arrangements are made, namely till a Secretary is appointed by the Government. In our view the appointment of the new Secretary can be traceable to the powers vested in the Government under Section 16 irrespective of the power vested under the rules. The argument that Appellant being an employee of the Board his services could only be terminated by the Board and not by the State Government has no validity in that the old rules have been repealed and the new Board has no power to appoint a Secretary. It has been urged before us that a decision of this court in State of Assam v. Kripanath Sarma, (1967) 1 SCR 499 =(AIR 1967 SO 459), 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 materia with the provisions of the Act which we are 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. Section 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. Section 46 (2) (c) however merely continues them and does not deem them to be employees of the Board. What happened in that case was that the Board merely passed a resolution "that all teachers who are not Matriculates or who have not passed the Teachers test but who are working as Teachers in School shall be discharged with effect from 31-3-63". The Assistant Secretary without obtaining specific sanction from the Board issued orders for their discharge which he had no power to do. In those circumstances the power to terminate the services being in the Board, it was held that the order of termination by the Assistant Secretary was invalid. This case does not help the Appellant. Lastly the learned Advocate sought to press in aid a Judgment of a Bench of the Calcutta High Court in Bidyut Kr. Biswas v. West Bengal Board of Secondary Education, (1969) 73 Cal WN 417, in which the provisions of Section 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 Section 16 is not vested in the Board but in the Government as such there can be no validity in the contention of the learned Advocate for the Appellant that the Government has no power to appoint a Secretary in place 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 is for the continuance of the Employees of the previous Board till other arrangements are made, namely till a Secretary is appointed by the Government. In our view the appointment of the new Secretary can be traceable to the powers vested in the Government under Section 16 irrespective of the power vested under the rules. The argument that Appellant being an employee of the Board his services could only be terminated by the Board and not by the State Government has no validity in that the old rules have been repealed and the new Board has no power to appoint a Secretary. It has been urged before us that a decision of this court in State of Assam v. Kripanath Sarma, (1967) 1 SCR 499   =(AIR 1967 SO 459), 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 materia with the provisions of the Act which we are 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. Section 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. Section 46 (2) (c) however merely continues them and does not deem them to be employees of the Board. What happened in that case was that the Board merely passed a resolution "that all teachers who are not Matriculates or who have not passed the Teachers test but who are working as Teachers in School shall be discharged with effect from 31-3-63". The Assistant Secretary without obtaining specific sanction from the Board issued orders for their discharge which he had no power to do. In those circumstances the power to terminate the services being in the Board, it was held that the order of termination by the Assistant Secretary was invalid. This case does not help the Appellant. Lastly the learned Advocate sought to press in aid a Judgment of a Bench of the Calcutta High Court in Bidyut Kr. Biswas v. West Bengal Board of Secondary Education, (1969) 73 Cal WN 417, in which the provisions of Section 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.