BISWANATH BANARJEE versus STATE OF WEST BENGAL & ORS.

Citation: [1971] 3 S.C.R. 897 · Decided: 02-03-1971 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Dismissed

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Judgment (excerpt)

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897 
BISWANATH BANARJEE 
v. 
STATE OF WEST BENGAL & ORS. 
March 2, 1971 
[K. S. HEGDB AND P. JAGANMOHAN REDDY, JJ.] 
West Bengal Board of Secondary Education Act (5 of 1963), ss. 16 
and 46(2)-Existing employees to continue in office till arrangements are 
mGde under the Act-Appointment of Secretary under the Act-Whether 
services of previous Secretary dispensed with-Whelher existing employees 
are 'deemed' to be the employees of the Board under the Act. 
In 1962, lbe appellant was appointed Seciretary . of the Board of 
Secondary Education constituted under the West Bengal Secondary Edu-
cation Act, 1950, as amended in 1954. In 1963, the West Bengal Board 
of Seoondary Education Act was enacted repealing the earlier Acts and 
the rules made thereunder. 
The 1963-Act constituted an entirely new 
Board of Secondary Education. 
Under s. 46(2), the services of the 
persons in the employment of the Board under the old Act are continued 
until other provision is made. 
Under s. 16, the power of appointment 
of the Secretary for the Board is ves.ted in the State Government and 
not in the Board. Rule 8 of the Rules made under the 1963-Act provided 
that the State Government may dispense with the services of the Secretary 
on three months' notice or payment of three months' salary in lieu of 
notice. The State Government dispensed with the services of the appellant 
paying bim three months' salary in lieu of notice, and appointed a new 
secreta'ry in his place. 
On the que.stions : ( 1) Whether the State Government ··coulJ act 
under r. 8 in respect of a person who is continued in service under s. 46 
of the 1963-Act; and (2) Whether the services of an employee cf the 
Board could be terminated by the State Government, 
HELD: (I) All that the 1963-Act provides for is the continuance of 
the employees of the · prevrous Board till other. arrangements are made. 
That is, in the present case, the appellant was Continued in_ service only 
1mlil tmother secretary was appointed by the State Goyernment under the 
1963-Act; and the State Government has the power to appoint a Secretary 
under s. 16 of the Act, irrespectiYe of its powers under the Rules. [9C l A-C] 
(2) Under s. 46(2) of the 1963-Act the appellant merely continues 
in service but he is not deemed to be an employee of he Board. There-
fore, there is no basis for the argument tbat the services of an em ployce 
of the Board could only be terminated only by the Board al)d not lJy the 
State Government. [901 C, Fl 
St11.te of Assam v. Kripanath Sarma, [1967] 1 S.C.R. 499, distinguished. 
CIVIL APPELLATE JyRJSDICTION: 
Civil AJ!lleals Nos. 1674 
and 1675 of 1969. 
898 
SUPREME. COURT REPORTS 
[1971] 3 S.C.R. 
Appeals from the judgment and decree dated July 23, 1968 o~ 
the Calcutta High Court in Appeal from Original Order Nos. 185 
and 186 of 1967. 
/3. Sen, D. N. Mukherjee and Somendra Chandra Bose, for the 
.ppellant. 
K. R. Chaudhuri and K., Rajendra Clwwdhary, for resp<>n-
dents Nos. 2, 3 and 6. 
Santosh Chatterjee, G. S. Chatterjee for· Sukumar Basu, for 
respondent No. 1. 
The Judgment of the Court was delivered by 
P. Jaganmohan Reddy, J.-These appeals are by a certifi-
cate under Art. 132(C) of the Constitution of India against 
the judgment of the Calcutta High Court, which have by 
an order of this Court dated 25-8-1969 been consolidated for the 
purpose of hearing. The short question for determination in these 
appe;1ls in whether under the provisions of the 
West 
Bengal 
Board of Secondary Education Act 5 of 1963 read with Rule 8 
of tlie West Bengal Board of Secondary Educatiqn (Appointment 
of s~cretary) Rules, the appellant could be discharged from the 
s~rvice oJ the Board of Education. The appellant was an office 
Suporintendent of the Board constituted under the West Bengal 
Secondary Education Act 37 of 1950 (hereinafter called 'the 
1950 Act'). He was promoted as Assistant Secretary on 12-7-1952. 
as Deputy Secretary on 18-6-56 and on the 1st/8th August 1962 
he was appointed as Secretary on probation and confirmed on 
1-8-63 by an order dated the 24th August '63. 
The appellant 
continued in this office till 25th November '66 when his services 
wero dispensed with. with immediate effect on payment of 3 months 
salary in lieu of notice. In his place the Government by its order 
of 
the same 
date 
appointed 
temporarily 
respondent 
6-D. 
Mazumdar, Director of Consumer Goods, West Bengal as Secre-
tary for a period not exceeding 

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