# BISWANATH BANARJEE v. STATE OF WEST BENGAL & ORS

- **Citation:** [1971] 3 S.C.R. 897
- **Court:** Supreme Court of India
- **Decided:** 1971-03-02
- **Bench:** K. S. Hegdb, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/biswanath-banarjee-v-state-of-west-bengal-ors-5448
- **Pages:** 6

## Headnote

West Bengal Board of Secondary Education Act (5 of 1963), ss. 16
and 46(2)-Existing employees to continue in office till arrangements are
mGde under the Act-Appointment of Secretary under the Act-Whether
services of previous Secretary dispensed with-Whelher existing employees
are 'deemed' to be the employees of the Board under the Act.
In 1962, lbe appellant was appointed Seciretary . of the Board of
Secondary Education constituted under the West Bengal Secondary Education Act, 1950, as amended in 1954. In 1963, the West Bengal Board
of Seoondary Education Act was enacted repealing the earlier Acts and
the rules made thereunder.
The 1963-Act constituted an entirely new
Board of Secondary Education.
Under s. 46(2), the services of the
persons in the employment of the Board under the old Act are continued
until other provision is made.
Under s. 16, the power of appointment
of the Secretary for the Board is ves.ted in the State Government and
not in the Board. Rule 8 of the Rules made under the 1963-Act provided
that the State Government may dispense with the services of the Secretary
on three months' notice or payment of three months' salary in lieu of
notice. The State Government dispensed with the services of the appellant
paying bim three months' salary in lieu of notice, and appointed a new
secreta'ry in his place.
On the que.stions : ( 1) Whether the State Government ··coulJ act
under r. 8 in respect of a person who is continued in service under s. 46
of the 1963-Act; and (2) Whether the services of an employee cf the
Board could be terminated by the State Government,
HELD: (I) All that the 1963-Act provides for is the continuance of
the employees of the · prevrous Board till other. arrangements are made.
That is, in the present case, the appellant was Continued in_ service only
1mlil tmother secretary was appointed by the State Goyernment under the
1963-Act; and the State Government has the power to appoint a Secretary
under s. 16 of the Act, irrespectiYe of its powers under the Rules. [9C l A-C]
(2) Under s. 46(2) of the 1963-Act the appellant merely continues
in service but he is not deemed to be an employee of he Board. Therefore, there is no basis for the argument tbat the services of an em ployce
of the Board could only be terminated only by the Board al)d not lJy the
State Government. [901 C, Fl
St11.te of Assam v. Kripanath Sarma, [1967] 1 S.C.R. 499, distinguished.
CIVIL APPELLATE JyRJSDICTION:
Civil AJ!lleals Nos. 1674
and 1675 of 1969.
898
SUPREME. COURT REPORTS
[1971] 3 S.C.R.
Appeals from the judgment and decree dated July 23, 1968 o~
the Calcutta High Court in Appeal from Original Order Nos. 185
and 186 of 1967.
/3. Sen, D. N. Mukherjee and Somendra Chandra Bose, for the
.ppellant.
K. R. Chaudhuri and K., Rajendra Clwwdhary, for resp<>ndents Nos. 2, 3 and 6.
Santosh Chatterjee, G. S. Chatterjee for· Sukumar Basu, for
respondent No. 1.

## Text

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897
BISWANATH BANARJEE
v.
STATE OF WEST BENGAL & ORS.
March 2, 1971
[K. S. HEGDB AND P. JAGANMOHAN REDDY, JJ.]
West Bengal Board of Secondary Education Act (5 of 1963), ss. 16
and 46(2)-Existing employees to continue in office till arrangements are
mGde under the Act-Appointment of Secretary under the Act-Whether
services of previous Secretary dispensed with-Whelher existing employees
are 'deemed' to be the employees of the Board under the Act.
In 1962, lbe appellant was appointed Seciretary . of the Board of
Secondary Education constituted under the West Bengal Secondary Education Act, 1950, as amended in 1954. In 1963, the West Bengal Board
of Seoondary Education Act was enacted repealing the earlier Acts and
the rules made thereunder.
The 1963-Act constituted an entirely new
Board of Secondary Education.
Under s. 46(2), the services of the
persons in the employment of the Board under the old Act are continued
until other provision is made.
Under s. 16, the power of appointment
of the Secretary for the Board is ves.ted in the State Government and
not in the Board. Rule 8 of the Rules made under the 1963-Act provided
that the State Government may dispense with the services of the Secretary
on three months' notice or payment of three months' salary in lieu of
notice. The State Government dispensed with the services of the appellant
paying bim three months' salary in lieu of notice, and appointed a new
secreta'ry in his place.
On the que.stions : ( 1) Whether the State Government ··coulJ act
under r. 8 in respect of a person who is continued in service under s. 46
of the 1963-Act; and (2) Whether the services of an employee cf the
Board could be terminated by the State Government,
HELD: (I) All that the 1963-Act provides for is the continuance of
the employees of the · prevrous Board till other. arrangements are made.
That is, in the present case, the appellant was Continued in_ service only
1mlil tmother secretary was appointed by the State Goyernment under the
1963-Act; and the State Government has the power to appoint a Secretary
under s. 16 of the Act, irrespectiYe of its powers under the Rules. [9C l A-C]
(2) Under s. 46(2) of the 1963-Act the appellant merely continues
in service but he is not deemed to be an employee of he Board. Therefore, there is no basis for the argument tbat the services of an em ployce
of the Board could only be terminated only by the Board al)d not lJy the
State Government. [901 C, Fl
St11.te of Assam v. Kripanath Sarma, [1967] 1 S.C.R. 499, distinguished.
CIVIL APPELLATE JyRJSDICTION:
Civil AJ!lleals Nos. 1674
and 1675 of 1969.
898
SUPREME. COURT REPORTS
[1971] 3 S.C.R.
Appeals from the judgment and decree dated July 23, 1968 o~
the Calcutta High Court in Appeal from Original Order Nos. 185
and 186 of 1967.
/3. Sen, D. N. Mukherjee and Somendra Chandra Bose, for the
.ppellant.
K. R. Chaudhuri and K., Rajendra Clwwdhary, for resp<>ndents Nos. 2, 3 and 6.
Santosh Chatterjee, G. S. Chatterjee for· Sukumar Basu, for
respondent No. 1.
The Judgment of the Court was delivered by
P. Jaganmohan Reddy, J.-These appeals are by a certificate under Art. 132(C) 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
appe;1ls in whether under the provisions of the
West
Bengal
Board of Secondary Education Act 5 of 1963 read with Rule 8
of tlie West Bengal Board of Secondary Educatiqn (Appointment
of s~cretary) Rules, the appellant could be discharged from the
s~rvice oJ the Board of Education. The appellant was an office
Suporintendent 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 1st/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
wero 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 Ql1 which
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he takes charge of the. office. As we have earlier mentioned the
initial Act under which his appointment was m,ade was the Act of
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1950.
Subsc:qdiently another Act knoWJll as the West Bengal
Secondary·Education (Temporary Provision) Act 24 of 1954 was
pass·~d hy the Legislature, by which the Board created by the Act
of I .;}50 was superseded and its powers were vested in an administrntor 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
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lllSWANATH I'. \\'LST BENGAL (J11ga11molw11 Reddy, ]. )
899
ccrt•iin regulations were made on 12-12-63 under the Act of 1950,
rule ..f 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 r~gulation 4 of 1951 the Board had .. pow~r 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 Heu of notice.
Act 22 of 1954 it may be mentioned did not abolish the Board
but only aut'J.orised the Administrator to carry on the duties and
lunctious 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 Sec. 46 repealed both
the 1950 Act as well as the tempopary 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 :
"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 tlfe duties
attached to the post of Secretary".
It is in exercise of powers vested l!nder this Rule that the
Governor dispensed with the services of the appellant which is
now challenged,
The learned Advocate for the appellant contend;
F' inter-alia that :-
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(i) .the rule under which the appellant's services have been
disp~nsed :-Vith h~ve no application to the case of a person who
contmues Ill service under Sec. 46 (2) ( c) of the 1963 Act,
(ii) being an employee of the Board, his services could only
be terminated by the Board and not by the State Government,
.
(iii) Sec. 46(2)(c) envisages that till some other employment
1s found for all those persons who were in employment of the Board
of Secondary Education before the. commencement of the 1963
Act, they cannot be discharged.
F?r an appreciation of these contentions it is
necessary to
cxamme the relevant provisions of the 1963 Act.
Under Sec. 2 (_a) the B~ard means the West Bengal Board of
Secondary Education established under the 1963 Act. Section 3
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900
SUPREME COURT REPORTS
[1971] 3 S.C.R.
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 Govt.
(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-
(4)
( 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.
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Sub-sec. ( 1) of Sec. 45 empowers the State Govt. after previous publication, to make rules for carrying out the purposes
of this Act and sub-sec. (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.
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It is under the last mentioned provision 45(2) (f) that the
rules were made, rule 8 of which we have already extracted. It
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will thus be seen that the 1963 Act constituted an entirely new
Board of Secondary Education and, after rej}ealing the old Acts
it continued the services of the Officers and other person~ in t11~
employm·~nt 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 Sec. 16 is not
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vested in the Board but in the Govt. as such there can be no
validity in the contention of the learned ~dvocate for th~ appellant that the Govt. has no power to appomt a Secretary m place
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.BISWA'NATH v. WEST BENGAL (Jaganmohan Reddy, J.)
901
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 bas no
power to appoint a Secretary, !lior has the appellant a right to
the post as such; AU that the Act pro\l'ides for is the continuance
of the employees of the previous Board till other arrangements
are made, namely till a Secretary is appointed by the Govt. In
our view the appointment of the new Secretary can be traceable
to the powers vested in the Govt. under Sec. 16 irrespective of the
power vested under the rules.
The argument tha't the appeliant
being an employee of the Board his services could only be terminal¢ by the Board and not by the Staie Govt. 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 <Jf Assam
v.
Kripanath
Sarina & Ors.. etc. (1), lends support to the contention of the
learned Advocate. That case was under the Assam Elementary
Edncation Act 1962 the relevant provisions of which are not in
pari-materia with the provisions of the Act which we a1e called
upon to consider.
The respondents m 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.
Sec. 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 Secti®. 38 were further deemed
to have been employed by the. said Board. The statute therefore
provided that they were the employees' of the Board. Sec. 46(2)
( c) however merely contimres 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
~eld .that th!'. order of termination, by the Assistant Secretary was
mvahd.
This case does not help the appellant. Lastly the learned Advocate ~ought to press in aid a Judgment of a Bench of
the Calcutta High Court in Bidyut Kr. Biswas & Ors.
v.
West
Bengal Board of Secorifiary Education & Ors.( 2), in which the
(I) [1967] l S.C.R. 499.
(2) c.w.N. Vol. 73 (1968-69) 417,
902
SUPREME COURT REPORTS
[1971) 3 S.C.R.
provision of Sec. 46(2)(c) of the 1963 Act were dealt with in
support of his contention that the persons in the employment of
Board ot 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 songht 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.
V.P.S.
Appeals dismissed.
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