Biswanath Banerjee v. State of W.B., (SC) BS108390
SUPREME COURT OF INDIA

Before:- K.S. Hegde and P. Jaganmohan Reddy, JJ.

Civil Appeals Nos. 1674 and 1675 of 1969. D/d. 2.3.1971.

Biswanath Banerjee - Appellant

Versus

State of W.B. - Respondent

For the Appellant :- Mr. B. Sen, Sr. Advocate, (M/s. D. N 7 Mukherjee and Somendra Chandra Bose, Advocates.

For the Respondents Nos 2, 3 and 6 :- M/s. K. R. Chaudhuri and K Rajendra Chowdhary, Advocates.

For the Respondent No 1:- Mr. Santosh Chatterjee, Advocate and Mr. G. S. Chatterjee, Advocate for Mr. Sukumar Basu, Advocate.

A. West Bengal Board of Secondary Education Act, 1963, Section 16, Rule 8 - Service Matters - Discharge from service - An employee of Secondary Education Board under W.B. Secondary Education Act, 1950 who was appointed as Secretary of Board by the Administrator who was vested with powers of Board was appointed by the State Government under W.B. Secondary Education (Temporary Provision) Act 22 of 1954 - He was discharged from services and another person was appointed in his place by Government under Section 16 of W.B. Board of Secondary Education Act of 1963 read with W.B. Board of Secondary Education (Appointment of Secretary) Rules, 1963, Rule 8 - Held, discharge of appellant from service, is valid.

[Para 5]

B. West Bengal Board of Secondary Education Act, 1963, Section 46(2)(c) - Constitution of India, Article 226 - Writs - Service matter - Discharge from service - Point that petitioners who were employees of Board of Secondary Education could not be discharged from the service till some alternative employment is found for them - Has not been raised in writ petition nor it has been urged before High Court cannot be permitted to be raised for the first time at the argument stage in W.P. before this Court.

[Para 5]

Cases Referred :-

State of Assam v. Kripanath Sarma, (1967) 1 SCR 499.

Bidyut Kr. Biswas v. West Bengal Board of Secondary Education, (1969) 73 Cal WN 417.

JUDGMENT

P. Jaganmohan Reddy, J. - These Appeals are by a Certificate under Article 132C of the Constitution of India against the Judgment of the Calcutta High Court, which have by an order of this Court dated 25-8-1969 been consolidated for the purpose of hearing. The short question for determination in these Appeals is whether under the Provisions of the West Bengal Board of Secondary Education Act 5 of 1963 read with Rule 8 of the West Bengal Board of Secondary Education (Appointment of Secretary) Rules, the Appellant could be discharged from the service of the Board of Education. The Appellant was an office Superintendent of the Board constituted under the West Bengal Secondary Education Act 37 of 1950 (hereinafter called 'the 1950 Act'). He was promoted as Assistant Secretary on 12-7-1952 as Deputy Secretary on 18-6-56 and on the lst/8th August 1962 he was appointed as Secretary on probation and confirmed on 1-8-63 by an order dated the 24th August 63. The Appellant continued in this office till 25th November '66 when his services were dispensed with, with immediate effect on payment of 3 months salary in lieu of notice. In his place the Government by its order of the same date appointed temporarily Respondent 6-D. Mazumdar, Director of Consumer Goods, West Bengal as Secretary for a period not exceeding 6 months from the date on which he takes charge of the office. As we have earlier mentioned the initial Act under which his appointment was made was the Act of 1950. Subsequently another Act known as the West Bengal Secondary Education (Temporary Provision) Act, 22 of 1954 was passed by the Legislature, by which the Board created by the Act of 1950 was superseded and its powers were vested in an Administrator appointed by the State Government. It was the Administrator who had appointed the Petitioner on probation. On the 20th February '63 the West Bengal Board of Secondary Education Act 5 of 1963 (hereinafter called 'the 1963 Act') was passed which came into force on 1-1-1964. Before this Act came into force certain regulations were made on 12-12-63 under the Act of 1950, Rule 4 of which dealt with the conditions of service which were similar to those in Rule 4 of 1951 regulations made on 19-9-51. Under regulation 4 of 1951 the Board had power to dispense with the services of the Secretary or any officer by giving 3 months notice or on payment to him of 3 months salary in lieu of notice. Act, 22 of 1954 it may be mentioned did not abolish the Board but only authorised the Administrator to carry on the duties and functions vested in the Board so that the Appellant when he was appointed on probation by the Administrator was an employee of the Board. The 1963 Act by Clause 1 of Section 46 repealed both the 1950 Act as well as the temporary provisions Act 22 of 1954 and by sub-clause (2) it provided that "all Officers and other persons in the employment of the Board of Secondary Education immediately before the commencement of this Act shall until provision is made continue in the service of the Board". It may here be mentioned that prior to the enforcement of the Act on 1-1-64 the Government had made and published rules under that Act known as the West Bengal Secondary Education (Appointment of Secretary) Rules 1963 Rule 8 whereof is in the following terms:

2. It is in exercise of powers vested under this Rule that the Governor dispensed with the services of the Appellant which is now challenged. The learned Advocate for the Appellant contends inter alia that:-

3. For an appreciation of these contentions it is necessary to examine the relevant provisions of the 1963 Act.

4. Under Section 2(a) the Board means the West Bengal Board of Secondary 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 :

5. 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:

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, 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. We cannot permit him to do so, and therefore express no views on this aspect of the case. In the result the Appeals are dismissed but in the circumstances without costs.

Appeals dismissed.