D. Basu, J.@mdashThe petitioner, was, in 1951, appointed Office Superintendent of the Board of Secondary Education (to be referred to as ''the Board''), 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 thereafter with which we are not concerned. By the W. B. Secondary Education (Temporary Provisions) Act, 1954 (hereinafter referred to as ''the Act of 1954''), the Board was superseded and its powers came to be exercised by an Administrator appointed by the State Government, but the Act of 1950 was otherwise left in tact. In 1962, the petitioner was appointed Secretary of the Board on probation, by the then Administrator, and he was confirmed in that post by the latter in August, 1963 (Ann. A, p. 14 of the petition). The West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as ''the Act or 1963'') came to be passed in the meantime (20th February. 1963) and it came into force on 1st of January, 1964. As I have explained in my judgment in (1) Adwaitya v. President. Board of Secondary Education [C.R. 1392(W) of 1964 since reported in (1967) 71 CWN 396], the Act of 1963 is a repealing and reacting measure. - having repealed and replaced the Act of 1950. The reasons given therein in this behalf may be taken as part of the judgment in the instant case. The Act of 1963 reproduced, with changes, many of the provisions of the Act of 1950 and provided for a new Board of Secondary Education which, too, was to be a statutory corporation, under a greater control to be exercised over it by the State Government than under the Act of 1950. On 7.11.66, the petitioner was served with the impugned order at Ann. B, page 15, dispensing with his services with three months'' salary in lieu of notice. The order, dated 5.11.66, reads 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.
A cheque for Rs. 3,600/- was enclosed with the notice in payment of the three months'' salary. Petitioner, however, returned the cheque and demanded justice, challenging the impugned order as ultra vires, and. on 10.11.66, came to court and obtained this Rule.
2. Separate affidavits-in-opposition have been filed on behalf of (a) respondents 1 (St. of West Bengal) and 5 (its Secretary); (b) respondent 2, the Board; (c) respondents 3-4, President of the Board and (d) respondent 6, the Secretary newly appointed by the Board.
3. Since only one point has been urged by Mr. Chaudhuri on behalf of the petitioner, it is not necessary to refer to the other points taken in the petition. The point urged is that the State Government has no jurisdiction to terminate the services of the petitioner under rule 8 of the West Bengal Board of Secondary Edn. (appointment of Secretary) Rules (hereinafter referred to as ''Rule 8'') framed under the Act of 1963 and that the petitioner can be dismissed only by the Board, by virtue of section 46 (2) (c) of that Act, - rule 8 being applicable only to a Secretary appointed after the Act of 1963 came into force.
4. Mr. Kar, appearing on behalf of respondents 2-4 (whose arguments adopted by the learned Advocate for the State Government), took a preliminary point that in view of the averments in paragraphs 7 and 9 of the petition, it was not open to the petitioner to contend that he had been appointed by the Board constituted under the Act of 1950 and that the petition must accordingly be thrown out in limine.
These paragraphs of the petition state-
7. On August 8, 1962, Dr. J. C. Sengupta the then Administrator of the Board of Secondary Education, West Bengal, appointed your petitioner as the Secretary to the aforesaid Board.
9. Your petitioner states that by an order of the State Government the previous Board of Secondary Education had been superseded and the said Dr. J. C. Sengupta was appointed as an Administrator of the said previous Board by the State Government and all powers of the then Board of Secondary Education, West Bengal had vested in him.
5. It was contended by Mr. Kar that in view of the words ''superseded'', ''appointed by the Administrator'' and the like, the petitioner''s own case in the petition was that the Board did not exist at the time of his appointment and that he had been appointed by the Administrator so that he cannot now be allowed to urge that his appointing authority was the Board and that he could be dismissed only by the Board under the Act of 1963 which has taken the place of the Board created under the Act of 1950. In my opinion, it Would be unfair to make such a narrow construction of the averments in the petition. If the averments in the two paragraphs are read as a whole with the words underlined by me, it would be clear that the petitioner''s case was that he was appointed as Secretary "to the aforesaid Board" by the Administrator who was vested with the powers of the Board.
6. The petitioner had to use the word ''supersede'' because that was the term used by the Act of 1954 but it does not follow that the petitioner meant that the Board was abolished. I have already stated that the Act of 1954 did not repeal the Act of 1950. I shall just now show that the Board set up by the Act of 1950 was also not abolished and that that Board continued to survive at law, until the Act of 1950 was repealed and replaced by the Act of 1963.
7. The preliminary objection must, therefore, be overruled and we must deal with the question raised on its merits, which depends entirely upon an appreciation of the sequence of the relevant legislation and an interpretation of some of the provisions thereof.
8. (I) The Act of 1950 was enacted "for the regulation, control and development of Secondary Education in West Bengal" and, for this purpose, set up a statutory body corporate, named the Board of Secondary Education (section 3). The appointment of a Secretary for this Board was provided for by section 18 of the Act in these terms :
The Board shall appoint a Secretary for the purpose of exercising its powers and performing its duties under this Act and shall also determine by regulations the conditions of their service.
9. The power to make regulations, as aforesaid, was conferred upon the Board itself, by section 36 (3) (a) of the Act, and, in exercise of this power the Board made the regulations providing for the conditions of service etc., of the Secretary, per Notification No. 4560 Edn,. dated 19.9.51. The relevant portion of regulation 4 of these Regulations was :
It shall be in the power of the Board to dispense with the services of the Secretary or any other officer on three months'' notice or on payment to him of three months'' salary in lieu of notice
10. From a reading of section 18 and regulation 4, just reproduced, it is clear that it was the Board which was the appointing and dismissing authority of the Secretary of the Board, under the Act of 1950.
11. (II) As I have already stated, the Act of 1954 did not repeal the Act of 1950; nor did it affect the regulations referred to. The only change introduced by the Act of 1954 was that the powers to be exercised by the Board under the Act of 1950 or under the rules, regulations etc., made thereunder were henceforth to be exercised by an Administrator. The Act of 1954 empowered the State Government to make a ''supersession order'' u/s 3 thereof. As soon as such order was made, during the period of operation of such order, the consequences enumerated in section 4 would follow. Of these, clause (b) provided:
When a Supersession Order has been made u/s 3 (b) all the powers, duties and functions which, under the provisions of the Act or any rule, bye-law or regulation made thereunder may be exercised or performed by the Board shall, so long as the Supersession Order continues to be in force, be exorcised and performed by such person (to be called the Administrator) as may be appointed by the State Government in this behalf
Though by clause (a) of the same section, it was provided that on the coming into force of the Supersession Order "all the members of the Board shall vacate their offices", the Board itself was not abolished. On the other hand, section 8 of the Act of 1954 expressly provided :
Nothing in this Act shall be construed as affecting or implying in any way the dissolution of the Board as a body corporate.
Thus, there was no statutory dissolution or abolition of the body corporate, the Board, which had been created by section 3 (2) of the Act of 1950; it subsisted for all purposes under the law, save that the powers etc., belonging to the Board were to be exercised by the Administrator during the continuance of the Supersession Order made u/s 3. That there was a Supersession Order is common ground though the text of that Order has not been brought before me by either party.
12. We need not, however, bother about that inasmuch as the fact that the Board set up by the Act of 1950 and continued by section 8 of the Act of 1954 did survive in law until its successor Board under the Act of 1963 came into existence is evidenced by the provisions of the Act of 1963 itself. Thus, while the word ''Board'' is defined in section 2(a) of the Act of 1963 as "the West Bengal Board of Secondary Education established under this Act", and wherever this term simpliciter is used in the Act of 1963, it is to be taken to refer to the new Board,-there are other expressions in section 46 of the Act, which unmistakeably refer to the Board set up by the Act of 1950. Sub-section (1) of section 46 repeals the Acts of 1950 and 1954 and sub-section (2) lays down the consequences of such repeal. Clauses (a), (b) and (c) of sub-section (2), which deal with the transfer of assets, continuance of legal proceedings and of the service of employees, use the expressions ''Board'' as well as "the Board of Secondary Education." It is evident that while the former word means the new Board, the latter expression refers to the Board set up under the Act of 1950. It is clear that under clause (a) which deals with the transfer of assets, there must necessarily be two parties, as between whom the transfer is to be effected. It says:
all property and assets vested in the Board of Secondary Education and all rights acquired or incurred by such Board before the commencement of this Act shall stand transferred to the State Government.
13. It is obvious that the Board created by the Act of 1963 could not have acquired assets or rights etc. prior to the commencement of that Act. The words ''Board before the commencement of this Act'' must therefore refer to the Board created by the Act of 1950 which continued to exist in law till the commencement of the Act of 1963 when the previous Act was repealed.
Clause (b), similarly, refers to ''legal proceedings instituted by or against the Board of Secondary Education before the commencement of this Act''. It is needless to point out that no proceedings could have been instituted before 1963, by or against a Board which had its birth under the Act of 1963 and the expression, just quoted, can only refer to the Board under the Act of 1950 which continued till the commencement of the Act of 1963.
In clause (c), similarly, the expression "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" indicate that there are two Boards and the employees of the one are to continue in the service of the other. There were employees like the petitioner of the old Board ''immediately before the commencement" of the Act of 1963, and it is for them that provision is made by this clause. The contention raised on behalf of the respondents that the petitioner could not have been appointed to be a Secretary to the Board set up under the Act of 1950 or that his services could not be transferred to the Board set up under the Act of 1963, therefore, stands rejected by section 46 (2) (c) of the Act of 1963 itself, apart from the other considerations stated by me earlier.
14. (III) The continuance ''in the service of the Board'' of 1963, however, was to have effect "until other provision is made" under the Act of 1963. We, have, accordingly, to turn to the interpretation of this expression, as to which subtleties have been introduced by the eminent counsel on either side. Leaving that for a moment, let us turn to the interpretation of rule 8 of the West Bengal Board of Secondary Education (appointment of Secretary) Rules, 1963, itself, because this is the rule claimed by the respondents to govern the petitioner.
Rule 8 says:
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
15. The respondents urge that this rule is applicable to the petitioner and that, accordingly, the State Government is competent to dispense with his services. But the interpretation clauses of these very Rules make is clear that none of the provisions of these rules can possibly have any application to the petitioner who was appointed prior to the commencement of the Act of 1963. The word ''Secretary'' in rule 8 is to be interpreted according to rule 2(d) which defines the word ''Secretary'' as meaning "the Secretary of the Board". The ''Board'', according to rule 2(b), means "the West Bengal Board of Secondary Education established under the Act" and "the Act", according to rule 2(a) means "the West Bengal Board of Secondary Education Act, 1963". Rule 3 provides for the appointment of ''Secretary'' by the State Government. The cycle is now complete, and there cannot be any two views in the matter of coming to the conclusion that the Secretary as to whose termination of services rule 8 provides for is a Secretary appointed under rule 3 of these rules, after the commencement of the Act of 1963 and cannot include a Secretary who had been appointed before the commencement of the Act of 1963. and as to the continuance of whose services under the new Board, provision is made in section 46 (2) (c) of the Act.
16. It was, however, contended by Mr. Kar that whatever might have been the direct application of the Rules just referred to (Notification No. 4519/24.12. 63), these must be taken to be the provision made for the purpose of section 46 (2) (c) of the Act of 1963, so that the State Government would have the power to dispense with the services of those employees of the old Board whose services were to continue under the new Board, as an interim measure, by virtue of section 46(2) (c). It is true that the continuance provided for by section 46(2) (c) would cease as soon as "other provision" was made under the Act of 1963. According to Mr. Kar, the Rules just referred to constitute that ''other provision''. The initial difficulty in the way of this contention, however, is that the Rules in question themselves do not profess to be rules made with reference to section 46 (2) (c). As the preamble of the notification No. 4519 says, these rules were made in exercise of the powers "conferred by sub-section (1) and, in particular by clause (f) of sub-section (2) of section 45" of the Act of 1963. Mr. Kar argued that sub-section (1) of section 45 gives the State Government the widest power to "make rules for carrying out the purposes of this Act" and it would include all the purposes of the Act, including the purposes of section 46 (2) (c), even though there was no reference to section 46(2) (c) in the notification itself. It is true that a defect in the labelling of a subordinate legislation cannot affect its true interpretation or render it ultra vires where it is otherwise infra vires. But. apart from the fact that rule 8 itself cannot by any means, be interpreted to extend to a Secretary appointed before the commencement of the Act of 1963, for the reasons already explained,-the reference to sub-section 2(f) of section 45 of the Act in the preamble of the Notification also explains the scope and object of rule 8 which is relied upon by the respondents. Section 45(2) (f) says :
In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-
(f) the terms and conditions of appointment, the scale of pay and the rules of discipline relating to the Secretary of the Board.
17. Since the term ''Board'' is defined in section 2(a) of the Act as the Board established under the Act of 1963 and since section 16 of the Act makes specific provisions for the appointment etc., of a Secretary to this Board after the commencement of the Act, section 45(2) (f) cannot, in any manner, include the case of a Secretary appointed before the commencement of the Act of 1963. Thus, section 16(1) of the Act of 1963 says :
The Board shall have a Secretary who shall be appointed by the State Government.
Sub-section (3) of the section then says:
The terms and conditions of appointment and the scales of pay and allowances, if any. shall -
(a) as respect the Secretary be such as may be prescribed
The rule-making power conferred by section 45 (2) (f), thus, cannot but refer to a new appointee after the commencement of the Act of 1963. and the scope of the Rules in question being thus fixed by the specific provision in the statute relied upon, it is difficult to maintain that, in the face of the interpretation clauses of the Rules themselves, the Rules must be interpreted to cover the case of a Secretary who was appointed before the commencement of the new Act and whose services were held under the Board and not the State Government, by virtue of the operation of section 46 (2) (c). It is also to be noted that rule 8 in question does not profess to substitute or modify Reg. 4 of the Regulations of 1951 (Notification No. 4560 of 19.9.51), which survives u/s 25 of the Bengal General Clauses Act.
18. Mr. Kar refers to the decision of the Supreme Court in (2) Life Insurance Corporation v. Sunil Kumar, AIR 1962 SC 947 in support if his contention that though the petitioner may have been appointed by a previous Board, his services could be terminated by the appointing authority constituted by the new Act. In order to examine the soundness of this contention, we must refer to the statutory provisions to which the cited case relates. The business and assets of all insurance companies were transferred to the Life Insurance Corporation set up by the Life Insurance Corporation Act, 1956. By section 11, the services of the employees of the companies prior to such transfer were transferred to the Corporation in these terms:
Section 11. (1) Every whole-time employees of an insurer whose controlled business has been transferred to and vested in the Corporation.. shall, on and from the appointed day, become an employee of the Corporation and shall continue to do so unless and until his employment in the Corporation is terminated or until his remuneration, terms and conditions are duly altered by the Corporation.
(2) Where the Central Government is satisfied that for the purpose of securing uniformity in the scales of remuneration it is necessary so to do, or that, in the interests of the Corporation and its policy holders, a reduction in the remuneration payable, or a revision in the other terms and conditions of service applicable to employees of any class of them is called for, the Central Government may, alter the remuneration and the other terms and conditions of service and if the alteration is not acceptable to any employee, the Corporation may terminate his employment by giving him compensation.
By vritue of the power conferred by section 11(2) above the Central Government made an order called the Field Officers'' (Alteration of Remuneration and other Terms and Conditions of Service) Order, 1957. Clause 10 of this Order laid down the procedure which had to be followed by the Corporation in terminating the services of Development Officers and clause 11 of the Order authorised the Corporation to make regulations determining the pay and allowances of the Development Officers.
In 1958, in exercise of its regulation-making power conferred by section 49 of the Act, read with clause 11 of the Order, the Corporation made Regulations relating to the pay etc., of the Development Officers and clause 4(3) of these Regulations authorised the Corporation to terminate the services of an Officer whose performance was less than 50 per cent of the quota, and, for such termination, no procedure was prescribed.
The respondent before the Supreme Court had been discharged by the Corporation in terms of clause 4(3) of its Regulations, without complying with the procedural requirements of clause 10 of the Order made by the Central Government. It was held by the Supreme Court that-
(i) The provisions contained in section 11 (2) of the Act are paramount and would override any contrary provisions contained in the Order or the Regulations.
(ii) Subject to the provisions of section 11(2), the provisions of the Order made by the Central Government would prevail, by virtue of the provisions of section 11(2) itself.
(iii) Subject to the foregoing (ii), the Regulations made by the Corporation would operate, but only if they are not inconsistent with the provisions of section 11(2) or of the Order.
19. The Court, accordingly, came to the conclusion that though under clause 4(3) of its Regulations, the Corporation could discharge these officers without going through any formality, the provisions of the Regulations must be read as being subject to the procedural requirements of clause 10 of the Order, because otherwise the Regulation would itself be ultra vires. Hence, the termination of the services of the respondent, without complying with the requirements of clause 10 of the Order was held to be invalid.
20. The best that this decision may say in favour of Mr. Kar is that though by section 11(1) of the Act, the pre-existing employees were transferred to the employment under the Corporation, the Corporation could not terminate such employment without complying with the formalities laid down by the Central Government. But this result was arrived at by the Supreme Court by an interpretation of the provisions of section 11(2) of the Act and of the Order made by the Central Government thereunder. There is nothing like those provisions in the 1963 Act before us. Section 46 (2) (c) simply transfers the services of the existing employees to the new Board, to continue "until further provision was made." It is not stated in this provision or anywhere in the Act that whenever the State Government made any Rules to govern the conditions of service of a new appointee under the Act of 1963, in exercise of the power conferred by section 45 (2) (f), such rules would ipso facto be applicable to a Secretary, previously appointed, irrespective of the contents of the Rules so made.
21. I am unable, therefore, to agree that the decision in the case cited by Mr. Kar is of any assistance to his contention.
22. Mr. Chaudhuri, on the other hand, relies on the unreported judgment of the Supreme Court in the case of (3) State of Assam v. Kripanath, CA 950/66, decided on 23.9.66. It relates to the Assam Elementary Education Act, which has certain features in common with the West Bengal legislation before me, though, of course, the provisions with which we are concerned are not similar in all respects. Nor are we concerned with the different aspects of the case dealt with by the Supreme Court. I shall, therefore, refer only to those portions which are relevant to follow the arguments of Mr. Chaudhuri.
23. In the cited case, two Acts were involved - the Assam Basic Education Act, 1954 and the Assam Elementary Education Act, 1962. The petitioner had been appointed a teacher prior to the coming into force of the 1962 Act by a School Board set up by the Act of 1954. The Act of 1962, which repealed the Act of 1954, set up a statutory corporation, named the State Board, to discharge functions more or less similar in nature to those of the School Boards which were abolished by the Act of 1962. The following provisions of the Act of 1962 have to be referred to in order to appreciate the relevant question before the Supreme Court and its decision :
34(2) :- All teachers and other employees maintained by the School Boards would be taken over by the State Board as soon as it was set up under the Act of 1962.
38 :- "All teachers existing in any Elementary School shall be deemed to have been employed by the State Board."
55(2) :- Nothwithstanding the repeal of the Act of 1954 by sub-section (1) of section 55, by sub-section (2) it was provided-
Notwithstanding the repeal all authorities constituted, appointments, rules, orders and notifications made under the said Act shall be deemed to be constituted or made under this Act and continue to function until actions under the provisions of this Act are taken.
14(3) (iii) :- Deputy Inspectors of Schools who were made ex officio Secretaries of the State Board were empowered-
to appoint teachers in recognized Schools
24. In April, 1963, the petitioner was served with an order terminating his services, issued by a Deputy Inspector of Schools, acting as an Assistant Secretary to the State Board constituted under the Act of 1963. The Supreme Court held this order to be invalid on the ground that though the Assistant Secretary of the State Board had the power to appoint teachers u/s 14(3) (iii) and that power, by the aid of the General Clauses Act would include the power to dismiss, - that power could not be exercised "to dismiss teachers who had been taken over u/s 34(2) of the Act and thus had been appointed before the Act came into force" for the simple reason that the office of the Assistant Secretary having been created by the Act of 1962, his power to appoint u/s 14(3) (iii), obviously referred to appointments made after the coming into force of the 1962 Act, so that the power to dismiss which comes by implication from the power to appoint, could not extend beyond the scope of the power to appoint, to cover those who had not been appointed by the Assistant Secretary. Mr. Chaudhuri contends that this conclusion of the Supreme Court rebuts the argument advanced by Mr. Kar that since the State Government has the power to appoint a Secretary under rule 3 of the Rules (Notification No. 4519/24.12.63). in exercise of the power conferred by section 45 (2) (f) of the 1963 Act before me, the power to dismiss must follow from that power, apart from anything else. In this context. Mr. Chaudhuri rtlies on the following observations of the Supreme Court in the case cited by him :
the authority which appoints can only dismiss such persons as have been appointed by it. It cannot dismiss persons appointed by any other authority. In the present case, 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 under the earlier enactment repealed by the Act. In the earlier Act, the appointing authority was the School Board 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 for there was no such authority in the earlier enactment.
25. Their Lordships adhered to the conclusion reached above notwithstanding the deeming provision in section 55 (2) upon which reliance was placed on behalf of the appellant. Their Lordships held that though section 55(2) made a general provision that all appointments made under the 1954 Act were were "to be deemed" to be made under the Act of 1962, this provision could not give the power to dismiss to the Assistant Secretary inasmuch as there were two specific provisions in the Act of 1962 which dealt with the preexisting employees, namely, sections 34 (2) and 38. under which the power to dismiss the pre-existing employees could be exercised only by the State Board, which was referred to therein and not its Assistant Secretary, by virtue of his newly created power u/s 14(3) (iii).
26. Mr. Chaudhuri is right in his contention that notwithstanding the ''deeming provision'' in section 55 (2),-anything like which does not exist in the 1963 Act before me, - the Supreme Court refused to interpret the power to appoint under the new Act to confer a power to dismiss employees who had been appointed by some other authority prior to the coming into force of the new Act.
27. The conclusion which I have already reached is based upon an interpretation of the Act of 1963 and the Rules promulgated under notification No. 4519 of 24.12.63, namely, that the Rules sought to govern the case of appointments of Secretary made subsequent to the coming into force of the new Act and that accordingly, rule 8. which was specifically relied upon in the impugned order, as conferring the power to dismiss the petitioner, was not available.
28. The observations of the Supreme Court in Kripanath''s case. (ibid), lend support to the further conclusion that the provision in section 46(2) (c) of the Act of 1963 is a specific provision dealing with the case of the pre-existing employees who were to continue "in the service of the Board", which means the Board of Secondary Education set up by the new Act and that, accordingly, such employees could be dismissed only by that Board and not the State Government. Of course, that power of the Board, u/s 46 (2) (c) is subject to the limitation "until other provision is made" and, according to Mr. Kar, the very making of the Rules in question (Notification No. 4519) constitutes the making of such other provision by the State Government. But, as I have already said, in making those Rules, the State Government did not profess to exercise any power to make such provision as is referred to in section 46 (2(c), nor intended to affect a Secretary who had been appointed prior to the coming into force of the new Act.
29. It is to be noted that in section 46(2) (c) itself it is not indicated by whom ''the other provision'' could be made, - the Board or the State Government. It is also to be noted that section 46(2) (c) is not confined in its application to the Secretary alone but extends to "all officers" and other employees of the previous Board and before me, it was not urged on behalf of the respondents that the State Government has made such ''other provision'' as regards any employee other than the Secretary. In the circumstances, in the absence of anything in the Notification No. 4519 to show that the Rules promulgated therein would also be applicable in the case of a Secretary appointed before the Act of 1963 came into force, it is not possible to come to the conclusion that by the very act of making these Rules, the State Government has made the ''other provision'' referred to in section 46(2) (c).
30. The eventual making of the impugned order by the State Government cannot colour the true interpretation of the Act or the Rules; on the other hand, the impugned order, not being supported by the Rules, must be held to be ultra vires. It may be mentioned, in passing, that even in section 55(2) of the Assam Act before the Supreme Court, there was an expression "until actions under the provisions of this Act are taken." The order of the Assistant Secretary was not accepted by the Supreme Court as an action ousting the jurisdiction of the State Board specifically vested by sections 34(2) and 38 of the Assam Act.
31. In the result. I must hold that the impugned order of discharge made against the petitioner by the State Government is ultra vires on the sole ground that the State Government could not claim such power under the Rules relied upon and that no ''provision'' as referred to in section 46 (2) (c) of the Act of 1963, taking away the power of the Board in respect of the pre-existing employees, had been made before making the impugned order. The Rule is accordingly made absolute. But in view of the points of law involved, there will be no order as to costs. Let the respondents be restrained from giving effect to the impugned order, without prejudice to the rights of the proper authority to make a fresh order in accordance with the law.
Let the operation of the order be stayed for a period of six weeks from this date as prayed for.
