O.H. Mootham, C.J.
1. This is a petition under Article 226 of the Constitution.
2. The facts can be stated very shortly. In 1943 the petitioner was appointed as the engineer to the respondent board, and later in that year he was confirmed in this appointment. He thereafter served the board until the 18 October 1954, when a resolution was passed by the board that his services be terminated and he be given three months' pay in lieu of notice. The petitioner sought to appeal against this order to the State Government, but the latter declined to intervene. The petitioner then filed this petition which came on for hearing before Mr. Justice Mehrotra, who being of opinion that it raised a question of law of some importance has referred it to a Bench.
3. The argument for the petitioner, which has been stated very succinctly by Mr. S.N. Kackar, is that although the board had the power to punish or dismiss the petitioner, it had no power otherwise to terminate his services in the absence of a special contract which did not exist in this case. In order to appreciate the argument it is necessary to refer to certain sections of the District Boards Act, 1922, and to a rule made thereunder. Section 82 of this Act, so far as is material for our present purpose, reads thus:
82 ... the power to decide all questions arising in respect of the service ... of servants of the board, who are employed ... on a monthly salary of more than Rs. 40 and the power to appoint, grant leave of absence to, punish, dismiss, transfer and control such servants of the board, shall vest in the president ...
Provided first, ... Provided secondly, ...
Provided thirdly, that the provisions of this section shall be subject to the provisions of Section 84:
Provided fourthly, that the power to appoint and dismiss the engineer ... of the board shall vest in the board, subject, in the case of dismissal, to a right of appeal to the State Government within one month of the order of dismissal.
Section 84 then provides that
84. The provisions of Sections 72, 73, 80 and 82 shall be subject to the provisions of
(d) any other relating to servants of a board.
4. Now, Section 172 of the Act empowers the State Government to make rules consistent with the Act, and in exercise of that power rules were made relating to officers and servants of district boards. We are concerned with Rule 3A (printed at p. 189 of the District Board Manual, 1952 edn.) which reads thus:
3A. The period of office of a permanent servant of the board other than a Government servant in its employ shall not determine until-
(i) his resignation has been accepted in writing by the authority competent to appoint his successor, or he ceases to be in service by the operation of the rules regulating the retirement of district board's servants; or
(ii) he has given such authority at least three months' notice where his pay exceeds Rs. 15 and in other cases at least one month's notice; or
(iii) he has paid or assigned to the board a sum equal to three months' pay where his pay exceeds Rs. 15 and in other cases a sum equal to one month's pay;
(iv) he has been given by the authority competent to appoint his successor not less than three months' notice or a sum equal to three months' pay in lieu of notice where his pay exceeds Rs. 15 and in other cases, not less than one month's notice or a sum equal to one months pay in lieu of notice.
5. This rule came into force in 1940. Learned Counsel's argument is that Clause (iv) of Rule 3A- which is the clause under which the board has acted in the present case-cannot be considered independently of the Act. The rule, it is contended, can operate only as a limitation on the powers conferred on the board by the Act, and unless there can be found in the latter a power which enables the board to determine the services of its employees, the provisions of Clause (iv) are of no effect.
6. We agree with the learned Counsel that the board's power to determine--we use the word 'determine' in the sense of terminate otherwise than by way of punishment the services of the petitioner-- must be found, if at all, in the Act but we are of opinion that that power is there. Under the fourth proviso to Section 82 the board is vested with the power to 'appoint and dismiss' its engineer. The question is what is the meaning to be given to the word 'dismiss' in this proviso. Learned Counsel for the petitioner argues that as a right of app eal is provided against an order of dismissal, the word 'dismiss' must mean dismiss as a punishment and that, by implication, a power to terminate the engineer's services in any other way is excluded. We are not able to accept this argument. The word 'dismiss' is now frequently used as meaning 'dismiss as a punishment' but etymologically it means no more than 'send away' and the District Boards Act became law over thirty years ago. In our opinion, the word 'dismiss' in the fourth proviso means to determine the appointment, whether by discharge or as a punishment. In other words, the board which has the power to make an appointment has also the power to unmake it. The fact that an appeal is provided against an order of dismissal does not conclude the matter. An appeal against an order discharging an employee from service may not be usual but we can see ho reason why it should not be provided if the legislature considers it to be desirable.
7. If the argument addressed to us be carried to its logical conclusion, an officer appointed by the board under the fourth proviso or by president or the secretary in exercise of their power under the section would be entitled to hold his appointment for life subject to good behaviour; for the word 'dismiss' as interpreted by the petitioner would debar the board from terminating the employee's appointment on the ground that he had reached the age fixed for superannuation. Such a consequence could not have been contemplated by the legislature. For these reasons we are of opinion that this petition fails. It is accordingly dismissed with costs.