MOHAN LAL Vs. STATE

JUDGEMENT

(1.) THIS is a writ petition under Articles 226 and 227 of the Constitution. The petitioner before us is one Mohanlal. He originally belonged to Electrical and mechanical Department of the erstwhile State of Jodhpur, and at the time of its integration in the United State of Rajasthan in 1949 he substantively held the post of a Mains Foreman in the grade of Rs. 150-10-200-EB-12j-300 plus a Car allowance of Rs. 50/- per mensem and remained to occupy the same post in the electrical and Mechanical department of the new State. The petitioner continued to hold the said post until the Rajasthan State Electricity Board was constituted under the Electricity (Supply) Act of 1948 (Act No. 54 of 1948 ). Acting under section 78a of the Act of 1948, a notification No. 13/osd (Elec-Bd.)/57 dated the 12th february, 1958, was issued by the Governor by which the services of the government employees of the Electrical and Mechanical Department excluding the electrical Inspectorate were provisionally placed at the disposal of the Rajasthan electricity Board with effect from the 1st July, 1957. By paragraph 2 of this notification the Board was required to permit each such Government employee to exercise option either to, (a) accept the new grades and service conditions framed by the Board under its regulations. (b) continue in the present grades and services conditions except in regard to conduct and discipline rules, or (c) obtain relief from Government service by claiming pension or gratuity as may be admissible on abolition of posts under the Rajasthan Service rules (Rules 215 to 226 ). Certain other provisions were also made by this notification regarding the grant of pension and leave etc. after the transfer of such personnel to the Board but with these we are not concerned. It is admitted that the services of the petitioner were thus placed at the disposal of the Board some time in 1957. Thereafter by an order dated the 27th January, 1960 (Ex. 1) the petitioner was deputed as Assistant engineer, Electrical in the Public Works Department (Buildings and Roads) with immediate effect in the scale of 250-25-500-EB-25-750 for one year in the 6rst instance. It was provided in this order that he would retain his lien in the Power department. Then by an order dated the 24th November, 1962 (Ex. 3) it was ordered that the petitioner be reverted to his parent Department with effect from the 1st of December, 1962, It seems, however, that this reversion did not actually materialise with eflect from the 1st December, 1962, but the period of his deputation to the Public Works Department was extended upto the 25th July, 1963 (Ex. 4 ). Then by an office order dated the 11th July, 1963 (Ex. 5) issued by the rajasthan State Electricity Board the following order was passed :

(2.) TWO of the respondents Dev Dutta Joshi and Abdul Hamid have put in their appearance before us through their respective counsel but no written reply has been filed on behalf of them. We regret to have to state that the State of rajasthan, who is respondent No. 1 in this petition, has also not chosen to file any reply. 2. The principal contentions raised on behalf of the Electricity Board may be summarised as follows : (a) That the petitioner ceased to be an employee of the Board as soon as he was sent on deputation as Assistant Engineer to the Public Works department and, therefore, he had no right whatever to be considered for promotion to any of the vacant posts under the control of the Board. (b) That even if the first contention is answered against the respondent board the petitioner's case cannot attract the operation of Article 14 or article 16 of the Constitution inasmuch as that authority does not fall within the ambit of the expression 'state' as used in those articles and, therefore, the petitioner would not be entitled to any relief from this court in the exercise of its writ jurisdiction. We propose to consider each of these contentions in the order in which we have set them out as above.

(3.) WHILE dealing with the first question it may be pointed out at the very outset that the petitioner himself seems to have adopted in the initial part of his writ application the position that his parent department was the Public Works department (Buildings and Roads) and that he was on deputation with the electricity Board and that the Government was under a mis-understanding when it took him as if he were in the service of Electricity Board and reverted him to after his appointment as Assistant Engineer in the Public Works Department was put an end to. This position was, however, eventually given up before us, and, in our opinion, rightly; and his learned counsel confined himself to the case that when the Rajasthan State Electrical and Mechanical Department was abolished and the work which was being transacted by that Department was entrusted to the rajasthan Electricity Board on its formation in 1957, the services of the personnel serving in the former Department with the exception of the Inspectorate, to which rank the petitioner does not belong, were placed at the disposal of the Board as per Government Notification dated the 12th February, 1958 referred to above (Ex. 8 ). We have already, quoted the relevant portion of the Notification above and its effect, in our opinion, undoubtedly was to provisionally place at the disposal of the board the services of all the Government employees of the Electrical and mechanical Department of the State excluding the Electrical Inspectorate both permanent and temporary. This Notification further required that the Board shall permit each such government servant to exercise option either to (a) accept the new grades and service conditions, or (b) continue in the present grade and service conditions, or (c) to retire from Government service on such pension or gratuity as may be admissible in the event of abolition of posts under the Rajasthan Service Rules. It is accepted before us that the Board was not able to frame its own grades and service conditions for quite a long time after 1957, and that these came to be framed some time in 1964. Our attention has in this connection been drawn, however, to the letter dated the 10th August, 1960 (Ex. 2) from the Deputy secretary to the Government in the Irrigation and Power department to the secretary Rajasthan Electricity Board, Jaipur, wherein an ad hoc decision was reached that pending final decision regarding the transfer of Government servants concerned to the service of the Board they will be treated as on deputation to it, though no deputation allowance was to be granted to them. The Board was required to pay leave salary directly to the staff and as regards the liability for pension the question was left open to be decided later on, but it was added that in the case of those who were retired before a final decision was taken the Board may discharge its liability by payment of pension contribution at the prescribed rates, so that the settlement of the pension claims of the retired servants concerned may not be held up. The position therefore, seems to us to have been that the personnel who were placed at the disposal of the Board continued to retain old grades and serve under old service conditions. It is indeed accepted before us that the petitioner was never given any option under paragraph 2 of the Notification of the 12th February, 1958. But it is contended that the services of the petitioner had in the meantime been placed at the disposal of the Public Works Department (Buildings and Roads)of the State (vide Ex. 1 dated the 27th January, 1960), and therefore, his connection with the Electricity Board had come to an end once for all-On giving our most careful and anxious consideration to all the factors pro and con on this aspect of the case we have not felt persuaded to accept this position as correct. There is no doubt that the petitioner's assignment in the Public Works Department (Buildings and Roads) was in the nature of a temporary deputation. That was the reason why his services came to be extended in that department from time to time until he was eventually reverted to the Board in July, 1963. We should also like to invite particular attention to the initial order of his aforesaid deputation in the Public Works Department (Ex. 1) in which it was clearly stated that he shall retain his lien in the Power Department. On our questioning learned counsel for the Board and the Oifice Incharge, who accompanied him, all that we have been able to discover is that there is no Power Department existing as such and that this is just another name for the State Electricity Board. That the services of the petitioner were still at the disposal of the Board is further apparent from the order of the Chief Engineer of the Board (Ex. 5) dated the 11th July, 1963, which speaks of "the reversion of the petitioner" from the Public Works Department. From all these facts and circumstances we have no hesitation in coming to the conclusion that the petitioner's services which had originally been placed at the disposal of the Board and had temporarily been lent to the Public Works department still continued to remain with it on his reversion from that Department and, therefore, it would be hardly correct to say that his connection with the Board ceased as soon as he was sent on deputation to the Public Works Department. This conclusion, to our mind, is almost irresistible in view of the fact that the services of the petitioner having been placed at the disposal of the Board as an employee of the State Electrical and Mechanical Department the Board never gave him any option within the meaning of paragraph 2 of the Notification dated the 12th February, 1958 (Ex. 8) which it was its duty to give before his service under it could cease. In these circumstances, it seems to us, that to all intent and purpose the petitioner was entitled to be considered tor promotion to any of the higher posts than that held by him under the Board just in the same manner as his colleagues in the erstwhile Electrical and Mechanical Department whose services had like been placed at the disposal of the Board were considered in 1961 and onwards. The fact of the matter, however, is that he was not so considered, and this was in all probability due to the fact that he had in the meantime been deputed to the public Works Department of the State and there held the post of an Assistant engineer in an officiating capacity. That circumstances, however, should not, in our opinion, make any difference to the correct situation which as already stated was and must be that he was entitled to be considered for promotion to any of the higher posts under the Electricity Board when the question of selection thereto arose, and on which occasion or occasions like personnel were considered for such promotion. The failure to do so would ordinarily be violative of Article 16 of the constitution which enshrines the principles of equality of opportunity in matter of public employment. There can be no doubt that the: phrase 'matters relating to employment or appointment to any office' must include matters relating to promotion also. (See General Manager Southern Railway v. Rangachari, AIR 1982 s C 36.)