LexSTATE OF ASSAM ETC. versus KRIPANATH SARMA & ORS. ETC.
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B c D r. ' 0 H 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 has- Delegation 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 The Act was repealed by the Assam Elementary Education Act, 1962, which came into force on 5th October, 1962.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 matri- culates 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 Secre- taries 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 ap- pears, the power to appoint include..'\ the power to dismiss; and it cannot he said that a different intention appears from the fact that the appoint- ment 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 Decem- ber, 1962, \\·ere not orders terminating the services Of any of the rc-;pon- dents 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 o
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