Sinha, C.J. - (1.) The facts in this case are briefly as follows: The respondent Biswanath Banerjee, was in 1951, appointed as Office Superintendent of the Board of Secondary Education, a statutory corporation set up by the West Bengal Secondary Education Act, 1950 (hereinafter referred to as the "Act of 1950"). He had several promotions. In 1954 came to be passed the West Bengal Secondary Education (Temporary Provisions) Act, 1954 (hereinafter referred to as the "Act of 1954"). By this Act, the Board created by the Act of 1950 was superseded and its powers came to be exercised by an Administrator appointed by the State Government. On 8th August, 1962 the said respondent was appointed Secretary of the Board, on probation, by the then Administrator. On 20th February, 1963 came to be passed the West Bengal Board of Secondary Education Act 1963 (hereinafter referred to as the "Act of 1963"). On 24th of August 1963 the said respondent was confirmed as a Secretary of the Board. The Act of 1963 was published in the Official Gazette on the 20th February 1963. Under Section 1 (3) thereof, it is provided that it shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint. The appointed date, when the Act was extended to the whole of West Bengal, is 1st of January, 1964. Under Section 45 of the Act of 1963, the State Government has been given powers to make rules for the purpose of the said Act. Sub-section (1) of Section 45 is the general power and Sub-section (2) sets out certain specific powers which are only illustrative of the general power. In exercise of this power, rules were framed by the State Government, called the West Bengal Board of Secondary Education (Appointment of Secretary) Rules, 1963. Curiously enough, the rules were published on the 24th December, 1963, even before the Act came into force. However, it is conceded that by virtue of Section 23 of the Bengal General Clauses Act, the rules are valid but are only operative from the date when the Act came into force. On the 7th November, 1966, the said respondent was served with a letter dated 5th November, 1966, purporting to be an order of the Governor. The relevant part of the order is as follows:-- "In exercise of the power conferred by Rule 8 of the West Bengal Board of Secondary Education (Appointment of Secretary) Rules, 1963, the Governor is pleased to dispense with the services of Shri Biswanath Banerjee Secretary of the West Bengal Board of Secondary Education with immediate effect on payment of three months' salary in lieu of notice." On the 10th of November, 1966, the said respondent moved an application in this Court under Article 226 of the Constitution challenging the validity of the said order dated 5th November, 1966 and a Rule Nisi was issued. This Rule came up for hearing before Basu, J., on the 22nd February, 1967 and succeeded. The Rule was made absolute and the appellant was restrained from giving effect to the impugned order. It is against this order that this appeal arises. Before us, only one point is argued and that is as follows. The position taken up is that the said respondent was appointed by the "Board" meaning thereby the Board of Secondary Education established under the Act of 1950, Under Sub-sections (1) and (2) (c) of Section 46 of the Act of 1963, his appointment was continued under the West Bengal Board of Secondary Education established under the Act of 1963, and that Rule 8 of the said Rules did not apply to him and the State Government had no jurisdiction to make any order terminating his services. It is this point which succeeded in the Court below, but is challenged before us.
(2.) In order to examine this argument, it will be necessary to consider certain provisions of the Act of 1963 as well as the said Rules. I have already mentioned that a "Board" known as the "Board of Secondary Education" was established under the Act of 1950. The Act of 1954 did not abolish the Board, but enabled an Administrator to carry on its duty. Under the Act of 1963, a new Board was created known as the "West Bengal Board of Secondary Education". The definition of the word "Board" is contained in Clause (b) of Section 2 and means the West Bengal Board of Secondary Education established under the Act. Section 3 (1) provides that the State Government shall, as soon as after the Act came into force, establish a Board named the West Bengal Board of Secondary Education. Actually the Board came into existence by notification dated 20th February, 1963, being the same date on which the Act of 1963 was gazetted. Sub-section (1) of Section 45, gives the power to the State Government to make rules for carrying out the purposes of the Act, Sub-section (2) specifies some of these powers. We are only concerned with Clause (f) which runs as follows:-- "(f) the terms and conditions of appointment, the scale of pay and the rules of discipline relating to the Secretary of the Board". Section 46 deals with the repeal and continuance. The relevant provisions are as follows:-- "46(1) The West Bengal Secondary Education Act, 1950 (hereafter referred to as the said Act), and the West Bengal Secondary Education (Temporary Provisions) Act, 1954, are hereby repealed, (2) Upon such repeal. (c) all officers and other persons in the employment of the Board of Secondary Education immediately before the commencement of this Act shall, until other provision is made, continue in the service of the Board".
(3.) I have already mentioned that in exercise of the powers under Section 45 (1) and (2) of the Act of 1963 the State Government has made rules known as the West Bengal Board of Secondary Education (Appointment of Secretary) Rules, 1963. We are concerned with Rule 8. The relevant part whereof rum as follows:-- "8. Power to dispense with the services of the Secretary -- The State Government shall have the power to dispense with the services of the Secretary on three months' notice or in lieu of such notice on payment of three months' salary and also to discharge or dismiss the Secretary from service without notice or compensation in the event of misconduct or of a breach of any of the duties attached to the post of Secretary.";