Full Judgment Text
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PETITIONER:
STATE OF ASSAM ETC.
Vs.
RESPONDENT:
KRIPANATH SARMA & ORS. ETC.
DATE OF JUDGMENT:
23/09/1966
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
SHELAT, J.M.
MITTER, G.K.
CITATION:
1967 AIR 459 1967 SCR (1) 499
CITATOR INFO :
R 1971 SC1038 (5)
ACT:
Assam Elementary Education Act (30 of 1962), ss. 14(3)
(iii), 34(2), 38 and 55(2), and Assam General Clauses Act (2
of 1915),s.18-Authority to appoint and dismiss school
teachers-Who has-Delegation of authority to dismiss-How to
be made.
HEADNOTE:
The respondents were Elementary School teachers appointed
under the Assam Basic Education Act, 1954. The Act was
repealed by the A,-%am Elementary Education Act, 1962, which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) provide,% 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 State Board.
In November 1962, the State Advisory Board, which was cons-
tituted under the 1954-Act and which continued to function
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 effect
from 31st March 1963. In December 1962, the Secretary of
the Advisory Board communicated the resolution to the
Assistant Secretaries and requested them to submit a
statement, before 20th April 1963, showing the names of
teachers, who were non-matries or who had not passed the
test and who were retained after 31st March 1963, stating
the reasons for their retention. Between April 1963 and
September 1963, the Assistant Secretaries issued letters
intimating the respondents that their services were
terminated. The respondents thereupon filed writ petitions
in the -High Court which were allowed.
In appeal to this Court.
HELD : (i) The Assistant Secretaries had no power to
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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 has to be exercised on the advice
of the Committee constituted under s. 16. Even if the word
"advice" is equated to "recommendation", the Committee only
recommends and it is the Assistant Secretary who is the
appointing authority. Therefore, if be was the appointing
authority he could dismiss those 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 includes the power to dismiss; and it cannot be said
that a different intention appears from the fact that the
appointment has to be made on the recommendation 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 Assistance Secretaries,
for there were no such authorities in the earlier enactment
repealed by the 1962-Act. Nor, can the appellant rely on s.
500
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, because,, 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 respondents could have been
terminated by the. State Board, but the orders terminating
the services in the present case were not those of the State
Board but of the Assistant Secretaries and were therefore
invalid.
The resolution of the State Advisory Board of November,
1962, and the letter of its Secretary, addressed to the
Assistant Secretaries in December, 1962, were not orders
terminating the services of any of the respondents because :
(i) when the resolution was passed there was no list of
teachers who were non-matrics or who had not passed the
Teachers’ test and legally, such a resolution could not be
read as an order dismissing persons whose names were not
even known to the authority passing the resolution; (ii) if
it really amounted to an order of discharge it should have
been communicated to the respondents for without such
communication it was of no use; (iii) the services of not a
single teacher were in fact terminated on 31st March 1963;
(iv) the fact that the resolution was communicated to the
Assistant Secretaries 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 had not passed the
test; and (vi) the letters terminating the services of the
respondents were in fact issued after 31st March 1963. [508
E-H; 509 C, E, F]
(iii) The resolution could not be taken to amount to a
delegation to the Assistant Secretaries, by the State
Board., of its authority to terminate the services of
teachers after laying down principles for such
termination.The resolution ha-, not a word to show that it
was so delegating-assuming that such a delegation was
possible. The fact that a copy of the resolution was
addressed by the Secretary to the Assistant Secretaries
could not mean that the authority was so delegated. If
delegation was possible, it could only be made by the State
Board itself by a resolution and not by its Secretary. [510
C-E]
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(iv) It could not also be said that the Assistant
Secretaries were only carrying out the instructions of the
State Board contained in the letter of December 1962.
Either the services had to be terminated by the State Board
itself, which was not done; or the services had to be
terminated by the Assistant Secretaries to whom the
authority was delegated (if such a ,delegation was
possible), but that also was not done. There was no third
way in which the resolution of November 1962 could be
implemented by the Assistant Secretaries unless they
themselves bad the power to terminate the services; but in
the instant case, they had no such authority. 15 1 0 F-H]
JUDGMENT:
CIVIL,APPELLATE JURISDICTION:Civil’Appeals Nos.950-957,
1141-1143 and 1703-1712/1966.
Appeals by special leave from the judgement and order dated
September 9, 1964 of the Assam and Nagaland High Court in
Civil Rules Nos. 115, 128, 134, 136, 151, 161, 197 and 160
of 1963.
501
S. V. Gupte, Solicitor-General and Naunit Lal, for the
appellant n C. As. Nos. 950-957 of 1966.
Naunit Lal, for appellants in C. As. Nos. 1141-1143 and
17031712 of 1966.
Hareshwar Goswami, K. Rajendra Chaudhury and K. R. Chau-
dhury, for respondent No. 1 in C. A. No. 950 of 1966.
K. R. Chaudhury and K. Rajendra Chaudhury, for respondent
No. 1 in C. As. Nos. 952 and 953 of 1966.
D. N. Mukherjee, for respondent No. 1 in C. A. No. 1142 and
respondents Nos. 2-8, 10, 11, 13-18, 20-22, 24, 26 and 27 in
C.A. No. 1143 of 1966.
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 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
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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,
502
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 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).
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 (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. 10 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 func-
tioning 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 ill 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 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
503
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
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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 pursuance 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 of non-T.T. and undermatric 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,
6sup, Cl/66-4
504
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, aft
er 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 Sarma on April 9, 1963 , the relevant part of
which is in these terms:-
"Under Departmental Instructions regarding
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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 res-
pondents in these appeals before us, a number of writ
petitions were filed in the High Court challenging 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 autho-
rity 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 (3)(iii) of the Act, the Deputy Inspectors of Schools who
are 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
505
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 therefore 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.
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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 services of the respondents
in view of s. 14(3)(iii) of the Act read with s. 18 of the
1915-Act. We have already set out S.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
Assistant Secretary had the power to terminate the services
of the respondents. Section 18 of the 1915-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 referred 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. 14(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, the 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 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
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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
507
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 appointed by it in exercise of that
power.Therefore the authority which appoint scan only
dismiss such persons as have been appointed by it. It cannot
dismiss persons appointed by any other authority, for such
persons have not been appointed by it in the exercise of its
power as appointing authority. In the present case, as we
have already pointed out, the office of the Assistant
Secretary of the State Board was created for the 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 Act the appointing 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.
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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
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. 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
terminated 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 were 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 should 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
Bachittar Singh v. The State of Punjab)(1). 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 not know 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) [1962] 3 Supp. S.C.R. 713.
509
indication of policy to be pursued for discharge of teachers
as from March 31, 1963.
That this is so is clear from the letter 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
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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
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
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services of these teachers, to which authority such delega-
tion 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
511
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.
The appeals therefore fail and are hereby dismissed with
costs, one hearing fee.
V.P.S. Appeals dismissed.
512