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State of West Bengal and ors. Vs. Biswanath Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 185 of 1967
Judge
Reported inAIR1969Cal175,73CWN163
ActsWest Bengal Board of Secondary Education Act, 1963 - Sections 45(1), 45(2) and 46; ;West Bengal Board of Secondary Education (Appointment of Secretary) Rules, 1963 - Rule 8; ;West Bengal Board of Secondary Education Act, 1950
AppellantState of West Bengal and ors.
RespondentBiswanath Banerjee and ors.
Appellant AdvocateGouri Mitter and ;Harashit Chakrabarty, Advs.
Respondent AdvocateR. Chaudhury, ;P.K. Banerjee, ;Narendra Nath Saha, Advs. for Respondent No. 1 and ;G.P. Kar, ;S.K. Ray and ;A. Lahiri, Advs. for Respondents Nos. 2 to 4
DispositionAppeal allowed
Cases ReferredState of Assam v. Kripanath Sharma
Excerpt:
- .....no. xxx of 1962 (hereinafter referred to as the '1962 act'). under this act was constituted the state board for elementary education. the main change introduced by the 1962 act was that the school boards functioning 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 headquarters 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 in particular by clause (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.....
Judgment:

Sinha, C.J.

1. The facts in this case are briefly as follows: The respondent Biswanath Banerjee, was in 1951, appointed as Office Superintendent of the Board of Secondary Education, a statutory corporation set up by the West Bengal Secondary Education Act, 1950 (hereinafter referred to as the 'Act of 1950'). He had several promotions. In 1954 came to be passed the West Bengal Secondary Education (Temporary Provisions) Act, 1954 (hereinafter referred to as the 'Act of 1954'). By this Act, the Board created by the Act of 1950 was superseded and its powers came to be exercised by an Administrator appointed by the State Government. On 8th August, 1962 the said respondent was appointed Secretary of the Board, on probation, by the then Administrator. On 20th February, 1963 came to be passed the West Bengal Board of Secondary Education Act 1963 (hereinafter referred to as the 'Act of 1963'). On 24th of August 1963 the said respondent was confirmed as a Secretary of the Board. The Act of 1963 was published in the Official Gazette on the 20th February 1963. Under Section 1 (3) thereof, it is provided that it shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint. The appointed date, when the Act was extended to the whole of West Bengal, is 1st of January, 1964. Under Section 45 of the Act of 1963, the State Government has been given powers to make rules for the purpose of the said Act. Sub-section (1) of Section 45 is the general power and Sub-section (2) sets out certain specific powers which are only illustrative of the general power. In exercise of this power, rules were framed by the State Government, called the West Bengal Board of Secondary Education (Appointment of Secretary) Rules, 1963. Curiously enough, the rules were published on the 24th December, 1963, even before the Act came into force. However, it is conceded that by virtue of Section 23 of the Bengal General Clauses Act, the rules are valid but are only operative from the date when the Act came into force. On the 7th November, 1966, the said respondent was served with a letter dated 5th November, 1966, purporting to be an order of the Governor. The relevant part of the order is as follows:--

'In exercise of the power conferred by Rule 8 of the West Bengal Board of Secondary Education (Appointment of Secretary) Rules, 1963, the Governor is pleased to dispense with the services of Shri Biswanath Banerjee Secretary of the West Bengal Board of Secondary Education with immediate effect on payment of three months' salary in lieu of notice.'

On the 10th of November, 1966, the said respondent moved an application in this Court under Article 226 of the Constitution challenging the validity of the said order dated 5th November, 1966 and a Rule Nisi was issued. This Rule came up for hearing before Basu, J., on the 22nd February, 1967 and succeeded. The Rule was made absolute and the appellant was restrained from giving effect to the impugned order. It is against this order that this appeal arises. Before us, only one point is argued and that is as follows. The position taken up is that the said respondent was appointed by the 'Board' meaning thereby the Board of Secondary Education established under the Act of 1950, Under Sub-sections (1) and (2) (c) of Section 46 of the Act of 1963, his appointment was continued under the West Bengal Board of Secondary Education established under the Act of 1963, and that Rule 8 of the said Rules did not apply to him and the State Government had no jurisdiction to make any order terminating his services. It is this point which succeeded in the Court below, but is challenged before us.

2. In order to examine this argument, it will be necessary to consider certain provisions of the Act of 1963 as well as the said Rules. I have already mentioned that a 'Board' known as the 'Board of Secondary Education' was established under the Act of 1950. The Act of 1954 did not abolish the Board, but enabled an Administrator to carry on its duty. Under the Act of 1963, a new Board was created known as the 'West Bengal Board of Secondary Education'. The definition of the word 'Board' is contained in Clause (b) of Section 2 and means the West Bengal Board of Secondary Education established under the Act. Section 3 (1) provides that the State Government shall, as soon as after the Act came into force, establish a Board named the West Bengal Board of Secondary Education. Actually the Board came into existence by notification dated 20th February, 1963, being the same date on which the Act of 1963 was gazetted. Sub-section (1) of Section 45, gives the power to the State Government to make rules for carrying out the purposes of the Act, Sub-section (2) specifies some of these powers. We are only concerned with Clause (f) which runs as follows:--

'(f) the terms and conditions of appointment, the scale of pay and the rules of discipline relating to the Secretary of the Board'.

Section 46 deals with the repeal and continuance. The relevant provisions are as follows:--

'46(1) The West Bengal Secondary Education Act, 1950 (hereafter referred to as the said Act), and the West Bengal Secondary Education (Temporary Provisions) Act, 1954, are hereby repealed,

(2) Upon such repeal.

(c) all officers and other persons in the employment of the Board of Secondary Education immediately before the commencement of this Act shall, until other provision is made, continue in the service of the Board'.

3. I have already mentioned that in exercise of the powers under Section 45 (1) and (2) of the Act of 1963 the State Government has made rules known as the West Bengal Board of Secondary Education (Appointment of Secretary) Rules, 1963. We are concerned with Rule 8. The relevant part whereof rum as follows:--

'8. Power to dispense with the services of the Secretary -- 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.'

4. It is in exercise of power under this Rule that the Governor passed the impugned order in this case dated 5th of November, 1966.

5. It must be remembered that this is not a case of dismissal or a disciplinary action at all. It is simply termination of the services of the said respondent upon three months' notice or payment of three months' salary in lieu of notice as specified in Rule 8. Under the impugned order, the services of the said respondent were terminated at once and three months' salary was offered to him. In fact, it was sent to him together with the order. It is admitted that if Rule 8 did not apply then the power could not be exercised and the impugned order would be invalid. So far as the validity of Rule 8 is concerned, I do not think that the part of the Rule which enables services to be terminated merely upon notice or the payment of compensation comes within the purview of Clause (f) of Sub-section (2) of Section 45. Under that provision, what can be prescribed are the terms and conditions of appointment, the scale of pay and rules of discipline relating to the Secretary of the Board: Mere termination of service does not come under any of these headings. The, powers enumerated in Sub-section (2) are however, merely illustrative. In other words, they are illustrations of the exercise of the general power contained in Sub-section (1) of Section 45. In our opinion. Rule 8 comes within the scope of Sub-section (1), and is perfectly valid and intra vires. The next question is as to whether it applies to the facts and circumstances of this case. That the respondent was originally appointed by the 'Board' as constituted under Act of 1950 there can be no doubt. The question (is?) as to the effect of Section 46 (2) (c). It will be observed that in Clause (c), the word 'Board' is mentioned twice. Our task is made easy because it is admitted before us that the first mentioned 'Board' is under the Act of 1950 and that the second mentioned 'Board' is under the Act of 1963, namely the West Bengal Board of Secondary Education. It is admitted that after the repeal of the Act of 1950, the Board of Secondary Education under that Act ceased to exist and is completely non est. Mr. Chadhury further admits that the said respondent is now in the service of the West Bengal Board of Secondary Education. According to him, it is that Board only which can dismiss his client. When we asked him as to under what rules could that be done, particularly as his argument is that the present Board is not the appointing authority, the answer given is that the Board could do it under the general law of master and servant, and no statutory rules are to be found. In fact, according to him, the rule-making power given under Section 45 cannot be exercised at all in respect of his client who is not subject to any of the provisions of the said Rules. According to him, the State Government has no power or authority to terminate the services of the said respondent. If we are to accept the argument of Mr. Chaudhury, the position of his client is a peculiar one. It is admitted that he Is in the service of the West Bengal Board of Secondary Education, which is a body incorporated by the Act of 1963. The very Act which has created the Board has also Riven power to the State Government to make rules, and elaborate rules have been made with regard to the post of Secretary to the Board. It deals with his conditions of service, the period of his service, rules with regard to his leave, provident fund, allowances and duties. None of these are to affect the said respondent, but everything is to be governed by the general law of master and servant. We find it very difficult to accept this proposition. Mr. Chaudhury, however, says that the point is concluded by a Supreme Court judgment -- State of Assam v. Kripanath Sharma : (1967)IILLJ576SC . The facts in that case were as follows: 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 the development of primary education in the State. That Act was repealed by the Assam Basic Education Act No. XVI of 1954 (hereinafter referred to as the 'Act of 1954'). This Act provided for a State Advisory Beard. It further made provision for the constitution of regional boards known as School Boards. These School Boards had the power to appoint and punish basic school teachers. The 1954 Act was repealed by the Assam Elementary Education Act No. XXX of 1962 (hereinafter referred to as the '1962 Act'). Under this Act was constituted the State Board for elementary education. The main change introduced by the 1962 Act was that the School Boards functioning 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 headquarters 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 in particular by Clause (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.'

The Act came into force from October 5, 1962. Section 34 (2) of the Act provided that as soon as it came into force, all teachers and other employees of the schools maintained by the School Board would be taken over by the State Board subject to certain conditions. Section 38 provides as follows:--

'All teachers existing or to be appointed in any Elementary School recognised under this Act except in the case of Autonomous Districts, shall be deemed to have been employed by the State Board.' Section 64 granted rule-making power to the State Government for carrying out the purposes of the Act Section 55 is a repealing section and provided as follows:--

'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.'

The next thing to be considered is that even after October 5, 1962 the State Advisory Board continued to function, until the State Board was constituted. Not only did it continue, but on 20th November, 1962 it passed a resolution which was in the following terms;--

'Subject to the exceptions enumerated in repeal all teachers who are not matriculates or who have not passed teachers' test but who are working as teachers in schools shall be discharged with effect from 31-3-1963.'

In pursuance of this resolution, the Secretary to the State Advisory Board wrote a letter to all the Secretaries of the School Board, 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, requesting them to give effect to the said resolution. It appears that after 31st March, 1963, action began to be taken on this instruction and the services of several teachers including that of the respondent in the Supreme Court Appeal : (1967)IILLJ576SC , Shri Kripanath Sharma, were terminated on the ground that they were not matriculates or T. T. teachers. A number of writ petitions including that of the petitioner were filed in the High Court challenging the orders of termination. The main point raised was that the Secretary of the School Board or Assistant Secretary to the State Board, under whose signature the letters of termination were issued had no authority under the Act to terminate the services of the teachers who had been appointed under the old Act. The first point to be considered was whether the Deputy Inspector of Schools. In his capacity as the Assistant Secretary of the State Board, could terminate the services of the respondent. I have already referred to Clause (iii) of Section 14 (3) which gave him the power to appoint teachers. But it gave him no right to dismiss them. It was argued that Under Section 18 of the Assam General Clauses Act No. II of 1950, a person who had the power to appoint had the power to dismiss. The Supreme Court accepted this proposition of law, but proceeded to examine the question as to whether, if this was the only provision as to dismissal, it could be said that the respondents were appointed by the Deputy Inspector of Schools in his capacity as Assistant Secretary of the State Board. Wanchoo. J., pointed out that the Assistant Secretary of the State Board was created for the first time by the 1954 Act Therefore, persons who had been appointed before the Act came into force could not possibly have been appointed by him, because under the old Act, which was repealed, there was no such post at all. In the earlier Act, the appointing Authority was the School Board, and there was no Assistant Secretary or the State Advisory Board. It was next urged that under Section 55 which has been set out above, all appointments Under the 1954 Act by the School Board, must be deemed to have been made by the Assistant Secretary under Section 14 (3) (iii) of the 1963 Act. Wanchoo J. said as follows:--

'We are of opinion that this contention cannot be accepted in view of the specific provision contained in the Act under Section 34 (2) and Section 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 Section 55 (2) 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 34 (2) 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 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 Section 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 Secretary of the State Board under Section 14 (3) (iii) of the Act read with Section 18 of the 1915 Act'

6. In my opinion there are substantial points of distinction between the facts involved in the Supreme Court decision : (1967)IILLJ576SC and the facts of the instant case. The first and foremost distinction is that in the Supreme Court case : (1967)IILLJ576SC the State Advisory Board under the 1954 Act continued to exist and in fact it was the implementation of a resolution passed by that Board, which caused the difficulty. In the present case, the old Board created by the Act of 1950 had ceased to exist and was completely nonest after the Act of 1963 came into force. The next point of distinction is that in the Assam case, no rules have been framed under the 1962 Act, but the power of dismissal was sought to be deduced under the General Clauses Act, from a power to appoint contained in the 1962 Act. As the appointments were made much earlier in point of time to the creation of the Appointing Authority, the question arose as to whether the Assistant Secretary could be said to be the Appointing Authority in respect of such appointments. By construing the provisions of the Assam Act, it was held that it could not be so. In the present case, however, the old Appointing Authority was no longer in existence and by the provision of the relevant Act, the said respondent came to be an employee of the West Bengal Board of Secondary Education which was created under the 1962 Act. The point as to whether the State could dismiss or terminate the services of the said respondent is not, on the facts of the present case, dependant on the question as who is the Appointing Authority. The position is completely covered by rules which have been made under the 1963 Act. These rules deal elaborately with regard to the post of the Secretary to the Board, which means the West Bengal Board of Secondary Education. If, as has been admitted before us, the said respondent has become an employee of the 'Board' as defined under the 1963 Act, then it does not stand to reason that rules cannot be made in respect of him under the express rule-making powers granted under Section 45 of the Act of 1963. There seems to be no reason whatsoever to import in his case the law of master and servant. In the Assam case : (1967)IILLJ576SC the State Advisory Board was continuing. The old School Boards functioning under the 1954 Act were abolished and in their place the Deputy Inspectors of Schools were made Assistant Secretaries of the said Board, which meant the new Board constituted under the 1962 Act. It is one of these Assistant Secretaries who tried to dismiss persons who had been appointed by the old School Board. The only power contained in the 1962 Act was one Riving him the power to appoint teachers. It was held that this might give him the power to dismiss, but the power would be prospective, and therefore, as he was not the Appointing Authority in respect of teachers appointed at a time when his post did not exist, he had no power to dismiss them. Under the deeming provision contained in Section 55, appointments made under the old Act were to be deemed to be made under the new Act, but under the new Act there were specific provisions whereby employees of the old School Board were to be taken over by the State Board. Therefore, it was only the State Board which could exercise the power of dismissal and the State Board had not been formed yet, and in any event it was held that the action taken by the Assistant Secretary was not authorised by any State Board.

7. These facts have no application to the facts of the present case. In the present case, the new Board has come into existence and it is admitted that the said respondent is an employee of the new Board, namely, the West Bengal Board of Secondary Education. Powers have been specifically given under the 1963 Act to the State Government to make rules for the Secretary of the Board and such rules have been made and in our opinion Rule 8 is a valid rule and has been validly exercised.

8. In the circumstances we are of the opinion that the learned Judge in the Court below has come to an erroneous decision and that the appeal should be allowed and the order of the Court below should be set aside and the rule should be discharged, but there will be no order as to costs. There will also be no order with regard to costs of this appeal.

9. Let the status quo be maintained for six weeks from this date.

A.N. Sen, J.

10. I agree.


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