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SUPREME COURT OF INDIA
K.N. WANCHOO, J.M. SHELAT AND G.K. MITTER, JJ.
State of Assam etc., Appellants
Versus
Kripanath Sarma and others, Respondents.
Civil Appeals Nos. 950-957, 1141-1143 and 1703-1712 of 1966, D/- 23-9-1966.11111
Advocates appeared
Mr. S. V. Gupte, Solicitor General of India (Mr. Naunit Lal, Advocate with him), for Appellant in C. .As. Nos. 950-957 of 1966; Mr. Naunit Lal, Advocate, for Appellant in C. As. Nos. 1141-1143 and 1703-1712 of 1966; M/s. Hareshwar Goswami, K. Rajendra Chaudhury and K. R. Chaudhury, Advocates, for Respondent No. 1 in C. A. No. 950 of 1966; Mr. K. R. Chaudhury, Advocate (Mr. K. Rajendra Chaudhury, Advocate with him), for Respondent No. 1 in C. As. Nos. 952 and 953 of 1966; Mr. D. N. Mukherjee, Advocate, for Respondent No. 1 in C. A. No. 1142 of 1966 and Respondents Nos. 2-8, 10, 11, 13-18, 20-22, 24,26 and 27 in C. A. No. 1143 of 1966, Mr. Vineet Kumar, Advocate, for Respondent No. 2 in C. As. Nos. 950-957 of 1966.
ASSAM ELEMENTARY EDUCATION ACT, 1962 - S. 14 (3) (III) - S. 18 OF ASSAM GENERAL CLAUSES ACT, 1915 - POWER TO APPOINT INCLUDES POWER TO DISMISS - DEPUTY INSPECTORS OF SCHOOLS AS ASSISTANT SECRETARIES OF STATE BOARD - NO POWER TO DISMISS TEACHERS APPOINTED BEFORE ACT CAME INTO FORCE - S. 34 (2) AND S. 38 - TEACHERS TAKEN OVER BY STATE BOARD - DEEMING PROVISION IN S. 55 (2) - NOT APPLICABLE - RESOLUTION OF STATE ADVISORY BOARD - NOT AN ORDER TERMINATING SERVICES - LETTER OF SECRETARY, STATE ADVISORY BOARD - NOT A DELEGATION OF AUTHORITY TO TERMINATE SERVICES.
Fact of the Case:
The Assam Elementary Education Act, 1962 (the Act) repealed the Assam Basic Education Act, 1954 (the 1954-Act) and provided for the development, expansion, management, and control of basic education in the state. The Act established a State Board for Elementary Education (the State Board) and abolished the School Boards functioning under the 1954-Act. Deputy Inspectors of Schools, by virtue of their office, became Assistant Secretaries of the State Board with the same headquarters and jurisdiction as they had as Deputy Inspectors of Schools. They were authorized to operate funds, appoint office staff, and appoint teachers in recognized schools on the advice of a Committee constituted by the State Board. Section 34(2) of the Act provided that all teachers and other employees of schools maintained by School Boards would be taken over by the State Board, subject to the condition that their total emoluments and seniority would be maintained. Section 38 deemed all existing or to be appointed teachers in elementary schools, except in the case of Autonomous Districts, to have been employed by the State Board.
Finding of the Court:
The Court held that the Deputy Inspectors of Schools, as Assistant Secretaries of the State Board, did not have the power to terminate the services of teachers who had been taken over under Section 34(2) of the Act and thus had been appointed before the Act came into force. The Court reasoned that Section 18 of the Assam General Clauses Act, 1915, which provides that the authority having power to make an appointment shall have the power to suspend or dismiss any person appointed by it in exercise of that power, only applies to persons appointed by that authority. Since the Deputy Inspectors of Schools were not the appointing authority for teachers appointed before the Act came into force, they could not dismiss those teachers.
Issues: 1. Whether the Deputy Inspectors of Schools, as Assistant Secretaries of the State Board, had the power to terminate the services of teachers who had been taken over under Section 34(2) of the Act and thus had been appointed before the Act came into force? 2. Whether the State Board had terminated the services of the teachers?
Ratio Decidendi: 1. The Court interpreted Section 18 of the Assam General Clauses Act, 1915, and held that it only applies to persons appointed by the authority having the power to make an appointment. Since the Deputy Inspectors of Schools were not the appointing authority for teachers appointed before the Act came into force, they could not dismiss those teachers. 2. The Court examined the resolution of the State Advisory Board and the letter of the Secretary, State Advisory Board, and found that they did not amount to an order terminating the services of any teacher. The Court held that the resolution merely laid down principles to be applied for terminating services of teachers from March 31, 1963, and that the letter did not delegate the authority of the State Board to terminate services of teachers to any other authority.
Final Decision: The Court dismissed the appeals filed by the appellants, holding that the orders terminating the services of the respondent-teachers were invalid as they were not orders of the State Board and the Assistant Secretary had no power to terminate their services.
Judgment
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.
2. 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 l954 (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 and 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). It 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 recruitment and the conditions of service of basic school teachers and attendance officers, the training of teachers and the making of provision for such training, the curriculum, duration, standard and syllabus of basic education, 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 proposes of that Act fully and effectively or on which the State Government might consult the State Advisory Board.
3. The 1954-Act was repealed by the Assam Elementary Education Act, No. XXX of 1962, (hereinafter referred to as the Act). In the present appeals we are mainly concerned with the Act. Section 3 of the Act provides for the constitution of a State Board for Elementary Education (herein-after 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. 10 which inter alia provides that 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 opening 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.
4. 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 office, were made Assistant 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 by the State Board, to appoint their office staff, and in particular by Cl. (iii) of S 14 (3) :-
"to appoint teachers in recognised schools on the advice of a Committee constituted by the State Board under Section l6 and transfer them as necessary and also gran
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