S.K.Dhaon, J. - (1.) THE petitioner, a clerk in the office of the Basic Shiksha Adhikari, Pilibhit, feels aggrieved by an order suspending his services. He has, therefore, invoked the jurisdiction of this Court under Article 226 of the Constitution. According to the petitioner, on or before June 26, 1971 he was employed as a clerk in the Municipal Board at Pilibhit. As a result of the coming into force of the U.P. Basic Education Act, 1972 (hereinafter referred to as the Act) his services stood transferred to the U.P. Board of Basic Education (hereinafter referred to as the Board). This transfer took place by virtue of the operation of Section 9 of the Act. The main submission advanced on behalf of the petitioner is that despite the provisions of the Act, the authority competent to pass the order of suspension is the Basic Shiksha Adhikari. The foundation of this argument is: The State Government in the exercise of rule making power under the Act created the Basic Shiksha Adhikari as the competent authority to appoint the clerks for and on behalf of the Board and, therefore, on the relevant date that Adhikari alone had the jurisdiction to suspend the service of the petitioner.
(2.) SECTION 9, as it originally stood, may be extracted: - - (1) On and from the appointed day every teacher, officer and other employees serving under a local body exclusively in connection with basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the Board and shall hold office by the same tenure at the same remuneration and upon the same other terms and conditions of service as he would have held the same of the Board had not been constituted and shall continue to do so unless and until such tenure, remuneration and other terms and conditions are duly altered by the Board. Provided that any service rendered under a local body by any such teacher, officer or other employee before the appointed day shall be deemed to be service rendered under the Board. ............... (2) Nothing in sub -section (1) shall apply to any teacher, officer or other employees, who by notice in writing in that behalf to the State Government within a period of two months from the appointed day intimates his option for not becoming an employee of the Board, and where any employee gives such notice his service under the local body shall stand determined with effect from the appointed day and he shall be entitled to compensation from the local body which shall be as follows: ... ... ... ... ... ... Section 19 empowered the State Government to make Rules for carrying out the purposes of the Act and in particular for regulation of the recruitment and conditions of service of persons appointed as teachers to basic schools belonging to any local body. By the U.P. Education Laws (Amendment) Act (U.P. Act No. 12 of 1978) sub -section (2) of Section 6 of the Act was omitted. In sub -section (1) of Section 9 of the word "duly altered by the Board" the words ''altered by rules made by the State Government in that behalf" were substituted. Section 19 was substituted by the following: 19(1) The State Government may, by notifications, make rules for the carrying out the purposes of the Act. (2) In particular, and without prejudice to the generality of the foregoing powers such rule may provide all or any of the following matters, namely: - - (a) the recruitment and conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6; (b) the tenure of service, remuneration and other terms and conditions of service of officers, teachers and other employees transferred to the Board under Section 9.
(3.) IT is the petitioner's own case that his service as a clerk stood transferred to the Board under Section 2. The provisions of Section 9 read with the proviso as they originally stood clearly provided that the services of the petitioner stood transferred to the Board and he became its employee. It is not the case of the petitioner that he at any stage intimated to the Board under sub -section (2) of Section 9 that he did not wish to become an employee of the Board. In other words, he did not exercise the option given to him and he accepted the position that from the appointed day the Board became his employer and a relationship of master and servant or employer and employee came into existence between him and the Board. In Section 9 the Legislature made it clear that the petitioner became an employee of the Board on the same terms and conditions, including tenure and remuneration, which he enjoyed under his erstwhile employer, namely, Municipal Board, Pilibhit. The terms and conditions of the service of the petitioner were kept infact on the assumption that the Board had not come into existence. To put it differently, though the services of the petitioner stood transferred to the Board and it commenced exercising supervision, direction and control over him (petitioner), yet the terms and conditions of his services remained unaltered. However, the Legislature reserved in the Board the power to alter the tenure, remuneration and other terms and conditions.;