# STATE OF ASSAM ETC v. KRIPANATH SARMA & ORS. ETC

- **Citation:** [1967] 1 S.C.R. 499
- **Court:** Supreme Court of India
- **Decided:** 1966-09-23
- **Bench:** K. N. Wanchoo, J. M. Shelat, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-assam-etc-v-kripanath-sarma-ors-etc-3869
- **Pages:** 13

## Headnote

Assam Elementary Edu.cation Act
(30 of
1962),
ss. 14(3) (iU),
34(2), 38 and 55(2), and Assam General Clauses Act (2 of
1915),
s. 18-Authorlty to appoint and dismiss
school
teachers-Who hasDelegation of authority to dismiss-How to be made.
The respondents were Elementary School
teachers appointed under
the Assam Basic Education Act, 1954.
The Act was repealed by
the
Assam Elementary Education Act, 1962, which came into force on 5th
October, 1962.
Under the 1962-Act a State 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 Secretaries of the
State Board within their respective jurisdictions. Section 34(2) provides
that all the Elementary School teachers
appointed under the 1954-Act
would be taken over by the State Board and s.
38 provides that the
school teachers shall be deemed to have been
employed by the StaJe
Board.
In November 1962, the State Advisory Board, which was con,.
tituted under the 1954-Act and which continued to functlop even after
5th October 1962 (because the State Board under the latter Act was not
yet constituted) passed a resolution that all teachers who were not matriculates or who had not passed the Teachers' test
should be discharged
with e(fect from 31st March ·1963.
In December 1962, the Secretary of
the AdViSOry Boffrd communicated the resolution to the Assistant Secretaries and requested them to submit a statement, before 20th April 1963,
showing the names of teachersro who were non-matrics or Who had not
passed the test and who were retained after 31st March 1963, stating the
reasons f11>r their retention.
Between April 1963 and September 1963,
the Assistant Secretaries issued letters intimating
the respondents
that
their services were term.inated.
The respondents thereupon
filed writ
petitions in the' High Court which were allowed.
In appeal to this Court.
HELD: (i) The Assistarit Secretari~s had no power to terminate the
services of the respondents.
Under s. 14(3) (iii) of the 1962-Act, the power of appointment of an
elementary school teacher is in the Assistant Secretary though the power
ha~ to be exercised· on the advice
of the Committee corutituted under
s. 16.
Even if the word
0 advice" is equated to "recommendation", the.
Committee only recommends and it is the Assistant Secretary who is the
appointing authority. Therefore,
if he was the appointing authority he
could dismiss thooe appointed by him with the aid of s. 18 of the Assam
General Clauses Act, 1915, under which, unless a different intention appears, the power to appoint include..'\ the power to dismiss; and it cannot
he said that a different intention appears from the fact that the appointment has to be made on the rgcommendation or advice of the Committee.
But the respondents, in fact had been appointed before the
1962-Act
came into force and could not possibly
have· been
appointed
by the
A.isU.tancu Secretaries. for there were no such autboritie.'i
in the earlier
enactment repealed by the 1962-Act. N.or, can the appellant rely on s.
500
SUPREME COURT REPORTS
[1967] 1 S.CR.
55(2) of the 1962-Act, under which all appointments made under the
1954-Act shall be deemed to have been made under the 1962-Act, I»
<:ause, the specific provisions contained in ss. 34(2) and 38 lay down that
the teachers would be taken over and deemed to have been employed by
the State Board.
[506 E-H; 507 B-D; E-H]
(ii) The services of the re;pondents could have been tcrm"1a1ed hy
tho Stale Board, but the orders terminating the
services in the prL'5ent
1.:asc were not those of the State Board hut of the Assistant &crL'tJries
and were therefore invalid.
The resolution of the State Advisory Hoard of November, 1962. and
the letter of its Secretary, addressed to the Assistant Secretaries in December, 1962, \\·ere not orders terminating the services Of any of the rc-;pondents beca~e : (i) when the resolution wa ... passed there was nL> list of
teachers \Vho were non

## Text

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STATE OF ASSAM ETC.
V.
KRIPANATH SARMA & ORS. ETC.
September 23, 1966
[K. N. WANCHOO, J. M. SHELAT AND G. K. MITTER, JJ.]
Assam Elementary Edu.cation Act
(30 of
1962),
ss. 14(3) (iU),
34(2), 38 and 55(2), and Assam General Clauses Act (2 of
1915),
s. 18-Authorlty to appoint and dismiss
school
teachers-Who hasDelegation of authority to dismiss-How to be made.
The respondents were Elementary School
teachers appointed under
the Assam Basic Education Act, 1954.
The Act was repealed by
the
Assam Elementary Education Act, 1962, which came into force on 5th
October, 1962.
Under the 1962-Act a State 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 Secretaries of the
State Board within their respective jurisdictions. Section 34(2) provides
that all the Elementary School teachers
appointed under the 1954-Act
would be taken over by the State Board and s.
38 provides that the
school teachers shall be deemed to have been
employed by the StaJe
Board.
In November 1962, the State Advisory Board, which was con,.
tituted under the 1954-Act and which continued to functlop even after
5th October 1962 (because the State Board under the latter Act was not
yet constituted) passed a resolution that all teachers who were not matriculates or who had not passed the Teachers' test
should be discharged
with e(fect from 31st March ·1963.
In December 1962, the Secretary of
the AdViSOry Boffrd communicated the resolution to the Assistant Secretaries and requested them to submit a statement, before 20th April 1963,
showing the names of teachersro who were non-matrics or Who had not
passed the test and who were retained after 31st March 1963, stating the
reasons f11>r their retention.
Between April 1963 and September 1963,
the Assistant Secretaries issued letters intimating
the respondents
that
their services were term.inated.
The respondents thereupon
filed writ
petitions in the' High Court which were allowed.
In appeal to this Court.
HELD: (i) The Assistarit Secretari~s had no power to terminate the
services of the respondents.
Under s. 14(3) (iii) of the 1962-Act, the power of appointment of an
elementary school teacher is in the Assistant Secretary though the power
ha~ to be exercised· on the advice
of the Committee corutituted under
s. 16.
Even if the word
0 advice" is equated to "recommendation", the.
Committee only recommends and it is the Assistant Secretary who is the
appointing authority. Therefore,
if he was the appointing authority he
could dismiss thooe appointed by him with the aid of s. 18 of the Assam
General Clauses Act, 1915, under which, unless a different intention appears, the power to appoint include..'\ the power to dismiss; and it cannot
he said that a different intention appears from the fact that the appointment has to be made on the rgcommendation or advice of the Committee.
But the respondents, in fact had been appointed before the
1962-Act
came into force and could not possibly
have· been
appointed
by the
A.isU.tancu Secretaries. for there were no such autboritie.'i
in the earlier
enactment repealed by the 1962-Act. N.or, can the appellant rely on s.
500
SUPREME COURT REPORTS
[1967] 1 S.CR.
55(2) of the 1962-Act, under which all appointments made under the
1954-Act shall be deemed to have been made under the 1962-Act, I»
<:ause, the specific provisions contained in ss. 34(2) and 38 lay down that
the teachers would be taken over and deemed to have been employed by
the State Board.
[506 E-H; 507 B-D; E-H]
(ii) The services of the re;pondents could have been tcrm"1a1ed hy
tho Stale Board, but the orders terminating the
services in the prL'5ent
1.:asc were not those of the State Board hut of the Assistant &crL'tJries
and were therefore invalid.
The resolution of the State Advisory Hoard of November, 1962. and
the letter of its Secretary, addressed to the Assistant Secretaries in December, 1962, \\·ere not orders terminating the services Of any of the rc-;pondents beca~e : (i) when the resolution wa ... passed there was nL> list of
teachers \Vho were non-m.:itrics or who had not passed the l'cachcrs' test
and legally, such a resolution could not
be read
as an order dismissing
persons whose names were not even known to the authority pa5sing the
resolution; (ii) if it really amounted to an order of discharge it should
have hcen communicated to the respondents for without such communication it was of no use; (iii) the services of not a siogJe teacher were in fact
terminated on 3 lst March 1963; (iv) the fact that the resolution wa.' communicated to the Assistant Sccretari~ and not to any teacher shows that
it merely laid down principles to be followed for the termination of services
of certain teachers; (v) the letter permitted the Assistant Secretaries to retain, if necessary, teachers who were not matrics or who bad not pa~ed
the test; ;ind (vi) the letters terminating
the services of the re~pondeots
were in fact issued after 31st March 1963.
[5()8 B-H; 509 C, E, F]
(iii) ·n1e re'iolution could not be taken to ;imount to a delegation to
1hc Assistant Secretaric5, by the State Board .. of its authority to terminate
1he !'>crvices of teachers after laying do\\o·n principles for such tcrminJtion.
'Jbc resolution has not a word to show that it was $0 delegating-as<;uming
t~at such a delegation was possib'.e. ·me fact thnt a copy of the rcsolu1100 was addrc.>scd by the Secretary to 1hc Assistant Secretaries could not
mean that the authority was so delegated.
If delegation was po~sible, it
could only be made by the Stale Rnard itself by " resolution and not by
ih Secretary. [510 C-E]
(iv) It could not also be !'Jid that the A!sislant SccrclariCs were only
car.rying out the instructions of the State Board contained in the letter of
Decemher 1962.
Either the services had 10 be terminated by the State
Hoard itself, which v.·as not done; or the services bad to he terminated by
the A.ssistant Secretaries to whom the authority was delegated (if such a
dclc~ation was possihle), but that also was not done.
There was no third
''ray in v.·hich the resolution of November 1962 could be implemented by
the .o\.ssistant Sccretaric-; unless they themselve.s had the power to terminate rhe ~crviccs; but in the inst.ant case, they
had
no such authority.
[510 F-H]
CIVIL APPELi.ATP. JURISDICTION : Civil r Appeals Nos. 950-957.
I 141-l 14J and 1703-1712/1966.
_Appeals by >pccial leave from the judgment and order dated
September 9, 1964 of the Assam and Nagaland High Court in
Civil Rules Nn1. 115. 128, 134, 136. 151. 161, 197 and ~60 of
1963.
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ASSAM v. KRIPANATH (Wanchoo, /.)
501
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S. V. Gupte, Solicitor-General and Naunit Lal, for the appellant
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in C. As. Nos. 950-957 of 1966.
Naunit.Lal, for appellants in C. As. Nos. 1141-1143 and 17031712 of 1966.
llareshwar Goswami, K. Rajendra Chaudhury and K. R. Chaudhury, for respondent No. 1 in C. A. No. 950 of 1966.
K. R. Chaudhury and K. Rajendra Chaudhury, for respondent
No. I in C. As. Nos. 952 and 953 of 1966.
•
D. N. Mukherjee, for respondent No. 1 in C. A. No. 1142
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and respondents Nos. 2-8, 10, I 1, 13-18, 20-22, 24, 26 and 27 in
C.A. No. I 143 of 1966.
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Vineet Kumar, for respondent No. 2 in C. As. Nos. 950-957
of 1966. ·
The Judgment of the Court was delivered by
Wanchoo, J. These twenty-one appeals (eleven by special
leave and ten on certificates granted by the High Court) arise from
the judgment of the Assam High Court and will be dealt with
together, as they raise common questions. We shall therefore set
out the facts of one case relating to Kripanath Sarma in C.A. 950.
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 development of primary education in the State. That
Act was repealed by the Assam Basic Education Act, No. XXVI
of 1954 (hereinafter referred to as the 1954-Act) which was passed
to provide for development, expansion, management and control
of basic education and with a view to introduce gradually
universal, free arid compulsory basic education in the State.
The 1954-Act provided for a State Advisory Board for Basic
Education (hereinafter referred to as the State Advisory Board).
1t further made provision for the constitution of Regional Boards
for Basic Education known as School Boards for each region in
a district. These School Boards were to control basic education
in their regions and among the powers conferred on School Boards
was the power to appoint and punish basic school teachers and
attendance officers. The scheme of the 1954-Act was therefore to
entrust the conduct of basic education to .School Boards. The
State Advisory Board· was a central body whose function was to
advise the State Government on matters relating to the control and
direction of the activities of School Boards, the making of grants
to School Boards, the method of tecruitment and the c01;iditions
of service of basic school leathers and attendance officers, the
training of teachers and the making of provision for sue)! training,
502
SUPREME COURT llEPORTS
[1967] 1 S.C.R.
the curriculum, duration, standard and syllabus of basic educallon, the preparation, publication and selection of text books, the
medical inspection and treatment of children and any other matter
which the State Advisory Board considered necessary for carrying
out the purposes of that Act fully and effectively or on which the
State Government might consult the State Advisory Board.
The 1954-Act was repealed by the Assam Elementary Education Act, No. XXX of 1962, (hereinafter referred to as the Act).
Jn the present appeals we are mainly concerned with the Act.
SectiOll 3 of the Act provides for the constitution of a State Board for
Elementary Education (hereinafter referred to as the State Board)
and the State Board was made a corporate body with perpetual
succession and a common seal.
The functions of the State Board
were defined in s. IO which inter alia provides that the State Board
shall lay down principles for allocation of grants for carrying out
the purposes of the Act to local authorities, lay down procedure
and conditions
and hold such tests as may be
necessary for
recruitment of teachers of elementary schools on such terms and
conditions of service as may be prescribed, lay down
conditions
for recognition, expansion and amalgamation of schools and openings of schools, and do any other act which it considers necessary
for carrying out the purposes of the Act fully and effectively.
Under
s. 15 the State Board has to perform its duties and carry out its
functions in accordance with such rules of business as may be prescribed.
The main change in the 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 oflice, were mad~
Assistani Secretaries of the State Board with the same headquarter
and jurisdiction as they had as Deputy Inspectors of Schools.
They were inter alia authorised to operate the fund placed at their
disposal hy the State Board, to appoint their 0fficc staff, and in
particular hy cl. (iii) of s. 14 (3)--
"to appoint teachers in
recogni>ed schooh 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 ht
admissible."
Settion 16 authorised !he Stale Board to constitute Advisory Committees for the purpose of s. 14 (3)(iii).
The Act was to come int11
force at once and it actually came into force from October 5, 1962.
Section 34{2). of the Act provides that as soon as it came into force
all teachers and other employees of schools maintained by School
Boards would be taken over by the State Board subject to the condition that the total emoluments of the employees at the time they
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ASSAM v. KRIPANATH (Wanchoo, !.)
503
were taken over would be protected and their seniority would
be maintained. Section 38 provides that-
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"all teachers existing or to be appointed in any Elementary School recognised under the Act, except in the
case of the Autonomous Districts, shall be deemed to have
been employed by the State Board."
Section 54 is the rule making provision and gives power to the
State Government to make rules for carrying out the purposes of
the Act. Section 55 provides for the repeal of the 1954-Act and
sub-s. (2) thereof provides for savings in the following terms:-
"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."
It will be noticed that the saving clause provides that all authorities
constituted under the 1954-Act shall be deemed to be constituted
under the Act and shall continue to function until action under the
provisions of the Act is taken. It appears that by virtue of this
provision the State Advisory Board continued even after October
5, 1962, as apparently it took sometime to constitute the State
Board under the Act.
On November 20, 1962, the State Advisory Board passed a.
resolution, the relevant part of which is in these terms-
" Subject to the exceptions enumerated below, all
teachers who are not matriculates or who have not passed
the Teachers' Test but who are working as teachers in
schools shall be discharged with effect from 31-3-1963."
It is unnecessary to refer to the exceptions, for we are not concerned
with them.
In. ptirsuance of this resolution, the Secretary to the State
Advisory Board wrote a letter to all the Secretaries, School Boards,
who were no other than the Deputy Inspectors of Schools and who
became Assistant Secretaries of the State Board under s. 14 of the
Act. This letter began with the following paragraph:-
"In inviting a reference to the subject indicated above
(the subject indicated being removal ofnon-T.T. and under~
matric L.P. (Jr. Basic) Teachers and appointment of L.P.
(Jr. Basic) Teachers"),
"I have the honour to state that henceforward the
following principle adopted by the State Advisory Board
for Basic Education in its meeting held on 20th November '
Ml6Sup, Cl/66-4
504
SUPlll!MB COURT lll!PORTS
(1967] I S.C.R.
1962 should be strictly followed. In case of any doubt, this
office may be approached for clarification."
Then followed a copy of the resolution passed on November 20,
1962. The letter also contained directions as to the policy with
regard to appointments in future vacancies with which we are not
concerned. It concluded with the following paragraph:-
"Further, you are requested to submit a statement
showing the names of non-T.T. or under-matric teachers,
if any, after 31st March, 1963 stating the reasons for their
retention. In case there will be none after the said date,
please submit a nil report. This report should invariably
reach this office by the 20th April 1963 at the latest."
It appears that after March 31, 1963, action began to be taken
on these instructions and a letter was issued to Kripanath Samia
on April 9, 1963, the relevant part of which is in these terms:-
"Under Departmental Instructions regarding removal
of under-matric and non-T.T. Teachers, service of Shri
Kripanath Sarma, H.P. Janigog No. I, L.P. School is
hereby terminated with immediate effect."
We may add that similar letters were addressed to other teachers
who are respondents in the present appeal, though they were addressed in some cases in May 1963 and in one case as late as August
1963. In a few cases letters of removal were addressed to some of
the respondents in the present appeals as late as September 1963.
But it is remarkable that no letter was addressed to anyone before
March 31, 1963 intimating that his service would be terminated
from March 31, 1963.
On termination of the services of teachers who are now respondents in these appeals before us, a number of writ petitions were
filed in the High Court challengjng the orders of termination. The
main point raised in the petitions was that the Secretary, School
Board or the Assistant Secretary, State Board under whose signature the letters of termination of service were issued had no authority under the ·Act to terminate the services of the respondents.
It was also contended in the alternative that the respondent-teachers
were holding civil posts under the State and termination of their
services was in violation of the provision of Art. 311 (2) of the
Constitution.
These petitions were opposed on behalf of the State and in
some cases by the State Board. Their case was that under s. 14
(J)(iii) of the Act, the Deputy Inspectors of Schools who arc the
Assistant Secretaries of the State Board had the power to terminate the services of teachers. In the alternative, it was contended
that even if that was not so, the teachers were employees of the State
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Board and therefore under the general law it was open to the State
Board to terminate their services and that was what was done in
effect. Lastly, it was contended that the respondent-teachers were
not holding civil posts under the State and therefore Art. 311(2)
of the Constitution did not apply in their
case.
The High Court did not decide whether the respondent-teachers
were holding civil posts, whether Art. 311(2) of the Constitution
applied to them, and whether there had been a breach of the provisions thereof. It was, however, of opinion that s. 14(3)(iii) did
not give power to the Assistant Secretary (assuming that the letters
terminating services of the respondents were issued under that
provision) to terminate services of teachers who had been taken
over under s. 34(2) of the Act and who had not been appointed
under s. 14(3)(iii) by the Assistant Secretary. It held t)lerefore
that the letters to the respondent-teachers terminating their services
whether issued in the name of Secretary, School Board or Assistant
Secretary, State Board, were beyond his power as he could not
terminate the services of these teachers. As to the alternative argument namely, that these teachers were the employees of the State
Board and it was the State Board which had terminated their services the High Court held that .orders of termination could not
be held valid as the State Board which is a statutory body had not
acted under the provisions of the Act or the Rules under which a
statutory body had to act. In consequence the petitions were
allowed and the orders terminating the services of the respondents
were set aside. Thereupon the appellants came to this Court in
some cases on certificates obtained from the High Court and in
others on special leave obtained from this Court.
The main contention before us on behalf of the appellants is
two-fold. In the first place it is urged that under s. l 4(3)(iii) of
the Act read withs. 18 of the Assam General Clauses Act, No. II
of 1915, (hereinafter referred to as the 1915-Act), the orders of
termination passed by the Secretary, School Board or the Assistant
Secretary, State Board were within his power. In the alternative,
it is urged that the respondents were in any case employees of the
State Board under the Act and their services could be terminated
by the State Board and that was in effect what was done and therefore the termination of their services was perfectly valid.
We shall first consider whether the Deputy Inspector of Schools
in his capacity as the Assistant Secretary of the State Board could
terminate the services of the respondents in view of s. 14(3J(iii) of
the Act read withs. 18 of the 1915-Act. We have already set outs.
14(3)(iii). It gives powers to appoint teachers to the Deputy Inspector of Schools as the Assistant Secretary of the State Board.
The argument, based on s. 18 of the 1915-Act, is that the power to
appoint includes the power to suspend or dismiss and therefore the
506
SUPREME COURT REPORTS
(1967) I S.C.R.
Assistant Secretary had the power to terminate the services of the
respondents. Section 18 of the 191.S-Act is in these terms:-
"Where, by any Act, a power to make any appointment is conferred, then, unless a different intention appears,
the authority having power to make the appointment shall
also have power to suspend or dismiss any person appointed
by it in exercise of that power.
The High Court referr~d to s. 16 of the General Clauses Act, No.
X of 1897, though strictly speaking it is s. 18 of the 1915-Act which
has to be applied. The High Court was of the view that as appointments under s. 14 by the Assistant Secretary had to be made on
the advice of the Advisory Committee, the relevant provision in the
General Clauses Act was of no avail to confer a power of dismissal
on the Assistant Secretary under s. I 4(3)(iii), for that only applies
unless a different intention appears. The High Court thought
that, as the Assistant Secretary did not have complete power to
appoint teachers and could only do so on the advice of the Advisory
Committee, there was a different intention in s. 14(3)(iii), and that
was that no dismissal could be made by the Assistant Secretary
because he had in reality no complete power to appoint. It is
urged that this view of the High Court is incorrect.
Now as we read s. 14(3)(iii) of the Act, it is obvious that the
power of appointment is only in the Assistant Secretary, though
that power has to be exercised on the advice of the Committee
constituted under s. 16 of the Act. Even assuming that the recommendation of the Committee is necessary before appointment is
made by the Assistant Secretary, tb.e fact still remains that it is not
the Committee which appoints, and the appointment is made only
by the Assistant Secretary. Even if the word "advice" in this
provision is equated to the word "recommendation", it is still clear
that the Committee only recommends and it is the Assistant Secretary who is the appointing authority on the recommendation of the
Committee. It may be that the Assistant Secretary cannot make
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the appointment without the advice or recommendation of the
Committee. Even so, in law, the appointing authority is only the
Assistant Secretary, though this power is to be exercised on the
advice or recommendation of the Committee. Jn these circumstances, it cannot be said that there is any different intention
appearing from the fact that the appointment has to be made on the
recommendation or advice of the Committee. The appointing
authority would still be the Assistant Secretary and no one else, and
there is no reason why, if he is the <1ppointing authority, he cannot
dismiss those appointed by him with the aid of s. 18 of the 1915Act. We cannot therefore agree with this view of the High Court.
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But there is another difficulty in the present case which· stands
in the way of the Assistant Secretary having the power to dismiss
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teachers who had been taken over under s. 34(2) of the Act and
thus had been appointed before the Act came into force.
Section 18 ,
of the 1915-Act says that the authority b,aving power to make an
appointment shall have the power to suspend or dismiss any person
appointed by it in exercise of that power. Therefore the authority
which appoints can only dismiss such persons as have been appointed by
it. It cannot dismiss persons appointed by any other authority, for
suchpersonshavenot been appointedbyitinthe exercise of its power
asappointing authority. In the present case, as we have already pointed out, the office of the Assistant Secretary of the State Board was createdforthe first time by the Act. Therefore, all those persons who had
been appointed before the Act came into force could not possibly be appointed by the Assistant Secretary, for there was no such authority in the
earlier enactment repealed by the Act. In the earlier Acttheappointing
authority was the School Board, for there was no Assistant Secretary
of the State Advisory Board thereunder. Therefore a person appointed before the Act came into force by the School Board cannot
be said to have been appointed by the Assistant Secretary of the
State Board or its predecessor the State Advisory Board, for there was
no such authority in the earlier enactment. In the circumstances
we are of opinion that the Assistant Secretary could not dismiss
teachers appointed before the Act came into force, for there was no
such authority existing before that.
It is however urged that s. 55 provides that all appointments
under the 1954-Act shall be deemed to have been made under the
Act and therefore the appointments under the 1954-Act by the
School Boards must be deemed to have been made by the Assistant Secretary under s. 14(3)(iii) of the Act. We are of opinion
that this contention cannot be accepted in view of the specific
provision contained in the Act under s. 34(2) and s. 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
s. 55(2) with respect to appointment of teachers and other employees
of schools maintained by School Board. Further s. 38 specifically
says that all teachers then existing would be deemed to have been
employed by the State Board. Reading therefore s. 34(2) and s. 38
together, the conclusion is inevitable that there is no occasion for
the application of the deeming provision in s. 55 in the case of these
teachers. In the face of these two specific provisions the general
deeming provision contained in s. 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 s. 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
508
SUPIU!MB COURT IU!PORTS
[1967] 1 s.c.R.
Secretary of the State Board under s. 14(3) (iii) of the Act read with
s. 18 of the 1915-Act .
•
This brings us to the alternative argument, namely, whether
the respondents have been dismissed by the State Board. There is no
doubt that readings. 34(2) and s. 38 together, the existing teachers
were taken over by the State Board and became its employees.
Therefore, as their employer, the State Board would have power
under the general law of master and servant to terminate their
scrvic.:s unless that power was in any way circumscribed by statute.
The case of the respondents is not that that power of the State
Board is so circumscribed (subject of course to the argument
that these employees are protected under Art. 311 of the Constitution); their case is that the State Board never terminated their
services, and that the orders of termination were passed only by the
Assistant Secretary who had no authority to do so. On the other
hand, it is contended on behalf of the appellants that the services
of the respondents were tenninated by the State Board, and in this
connection reliance is placed on the resolution of November 20,
1962 to which reference has already been made.
The question that arises therefore is whether the said resolution can be said to have terminated the service of anyone at all.
It certainly begins by saying that "all teachers who are not matriculates or who have not passed the Teachers' Test but who are
working as teachers in schools shall be discharged with effect from
31-3-1963". It is not in dispute that at the time when this resolution was passed there was no list of teachers who w~re not matriculates or who had not passed the Teachers' Test before the State
Advisory Board. So the resolution in our opinion cannot be read
as amounting to terminating anyone's service and must only be read
as laying down principles which would have to be applied for
dispensing with the services of certain teachers from March 31, 1963
if conditions mentioned in the resolution are satisfied.
Legally,
a resolution like this cannot be read as an order dismissing persons
whose names were not even known to the authority passing it.
If this resolution really amounted to an order of discharge of particular persons, it sho•Jld have been communicated to them, for
without such communication it would be of no use for the purpose
of terminating the services of anybody: (see Bachillar Singh v.
The State of Punjab)('). It is not in dispute that this resolution was not
communicated to any teacher as such and obviously it could not
be communicated to any teacher who might even be governed by
its terms for the State Advisory Board did notknow to which particular teachers it might or might not apply.
It must therefore be
read not as an order terminating the services of anybody but as an
(1) [!9621 3 Supp. S.C.R. 713.
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ASSAM v. KRIPANATH (Wanchoo, I.)
509
indication of policy to be pursued for discharge of teachers as from
March 31, 1963.
That this is so is clear from the Jetter of December, 15, 1962
to which reference has already been made. This letter was addressed
by the Secretary of the State Advisory Board to all the Secretaries
of School Boards. It incorporated the resolution of November
20, 1962, and treated it in the opening part of the letter as enunciating for the future the principles to be strictly followed in the matter
of removal of non-T.T. and under-matric L.P. (Jr. Basic) teachers
and appointment of L.P. (Jr. Basic) teachers. The very fact that
this letter was addressed to the Secretaries of all School Boards
and not to any teacher shows that the resolution of November
20, 1962 did not terminate anyone's services but merely laid down
principles to be followed for termination of services _of certain
teachers as from March 31, 1963, if the terms of the resolution
applied. We cannot therefore read either the resolution of November 20, 1962 or the letter of December 15, 1962 as an order terminating the services of any teacher who may be non-T.T. or undermatric.
Further we may refer to the last paragraph of this letter which
has a significance of its own. It asks the Secretary, School Board
to submit a statement showing the names of non-T.T. teachers or
under-matric teachers, if any, after March 31, 1963, stating
the reasons for their retention. Clearly neither the resolution
nor the letter was therefore terminating the services of anyone,
for the last paragraph permitted the Secretaries of School Boards
to retain, if necessary, non-T.T. teachers or under'matric teachers
and required them to state the reasons why such retention took place
after March 31, 1963. If the resolution of November 20, 1962
or the letter of December 15, 1962 terminated the services of any
teacher in terms, such a paragraph as the last paragraph in the letter
of December 15, 1962 could not be there. It is also remarkable
that services of not a single teacher came to an end on March 31,
1963.
The letters intimating to the teachers that their services
were terminated began from April 9, 1963 and continued upto
some date in September 1963. If the resolution of November 1962
or the letter of December 15, 1962 had terminated the services of
all teachers governed by it from March 31, 1963 we fail to understand
how letters terminating their services were issued to various respondent-teachers on various dates from April to September 1963.
It is perfectly clear therefore that the resolution did not terminate the
services of any teacher; it merely laid down principles to be applied
for terminating services of teachers from March 31, 1963. We
should have expected that if the State Advisory Board intended to
terminate services of such teachers itself, the names of non-T.T.
or under-matric teachers should have been called for by it before
510
SUPREME COURT REPORTS
[1967) I S.C.R.
March 31, 1963
and thereafter it should have passed a specific
resolution terminating the services of those particular teachers and
this resolution should have been communicated to the teachers
concerned. If that had been done, it could have been said that the
State Board had terminated the services of the teachers concerned.
But we cannot possibly read the resolution or the letter as terminating the services of any teacher at all. They merely laid down
principles which had to be applied later on by somebody else
who was expected to terminate the services of the teachers
concerned.
Then it is urged that the resolution may be taken to amount to
a delegation by the State Board of its authority to terminate services of teachers after laying down principles for such termination. We consider that there
is no force in this contention
either. The resolution has not a word to show that it was delegating the authority of the State Board for terminating services of
teachers to any other authority, (assuming that such a delegation
is possible). There is nothing in the resolution to show even
if it were to be treated as a delegation by the State Board to terminate services of these teachers, to which authority such delegation was being made. The fact that a copy of the resolution was
addressed to the Secretaries, School
Boards by the Secretary,
State Board cannot mean that authority was being delegated to
the Secretaries of School Boards, even assuming that School
Boards could be functioning after October 5, 1962, when the
Act makes no provision for any School Board. If delegation was
possible, that delegation had to be made by the State Board
itself by a resolution and not by the Secretary of the State
Board.
Nor can we accept the argument that the Assistant Secretaries
were carrying out the instructions of the State Board contained
in the letter of December 15, 1962, for we can only see in a case of
this kind where services of teachers were terminated one of two
possibilities, i.e. either the services had to be terminated by the
State Board itself, which we have shown did· not take place, or
the services had to be terminated by somebody else to whom the
authority of the State Board was delegated (if such a delegation
was possible at all) and that also we have shown is not done.
We can see of no third way in which the resolution of November
20, 1962 could be implemented by a subordinate authority, unless
that subordinate authority had power itself to terminate the services of teachers.
We have already held that the Assistant Secretary had no such authority under s. 14(3)(iii) of the Act read with
s. 18 of the 1915-Act. Therefore, the orders issued in the present
case terminating the services of the
respondent-teachers were
invalid, for they were not orders of the State Board terminating
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511
A the services of the respondents; they must be held to be orders
of the Assistant Secretary who had no power to terminate the
services of the respondents.
B
The appeals therefore fail and ·are hereby dismissed with costs,
one hearing fee.
V.P.S.
Appeals dismissed.