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TMI Blog1966 (9) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 That Act was repealed by the Assam Basic Education Act, No. XXVI of 1954 (hereinafter referred to as the 1954- Act) which was passed to provide for development, expansion,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 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 16 authorised the State Board to constitute Advisory Committees for the purpose of s. 14 (3)(iii). The Act was to come into 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 were taken over would be protected and their seniority would be maintained. Section 38 provides that- all teachers existing or to be appointed in any Elementary School recognised under the Act, except in the case of the A utonomous 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 Sarma 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. 1, 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 3 1, 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14(3)(iii) of the Act read with s. 18 of the Assam General Clauses Act, No. 11 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommendation of the Committee. It may be that the Assistant Secretary cannot make 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. In 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 appointing 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. But there is another difficulty in the present case which stands in. the way of the Assistant Secretary having the power to dismiss 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 having power to make an appointment shall have the power to suspend or dismiss any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese 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 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 reading s. 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 services 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. 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate 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 serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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