KASRI VISHWANATH Vs. UNITED COMMERCIAL BANK

JUDGEMENT

(1.) THIS is a special appeal under Sec. 18 of the Rajasthan High Court Ordinance from the judgment of the learned Single Judge dated December 1, 1978 in S. B. Civil Writ Petition No. 439 of 1978, whereby the learned Judge dismissed the writ petition filed by the apppellant-petitioner.

(2.) THE appellant is a clerk in the United Commercial Bank, Bhopalgarh Branch, Jodhpur District. He was eligible for promotion to the higher post as Officer Grade 'd' on being selected after qualifying in a written test and interview. A memorandum of agreement regarding the policy on the procedure concerning promotion and selection was entered into between the respondent Bank and the workmen through their unions and in the said agreement it was provided that in allocation of marks for the written test, interview, length of service and qualifications three marks would be given for Double Graduation or Master's Degree from a recognised University or a post-graduate diploma of a recognised University or Institute. THE appellant holds a diploma in Costs and Works Accountancy (which for the sake of shortness is called "dcwa") of the University of Jodhpur. THE appellant's case is that the said diploma is a Post Graduate Diploma and that he was entitled to get credit of three marks for holding "dcwa", and consequently if three marks had been given to him on that account he would have been selected for promotion in 1975 and would have thereby qualified for interview held in 1976, but no such credit for three marks had been given to him. He therefore, prayed that the respondent - Bank may be directed to allot three marks to the appellant for the Post Graduate Diploma held by him or in the alternative on account of his being a double graduate and a further direction may also be issued to include the appellant's name in the penal of persons eligible for appointment to the Officers' Cadre.

(3.) LEARNED counsel for the respondent laid great emphasis on the observations made by Shah J. , as he then was in that case. It is true that Shah J. , went to the length of observing that the authorities constitutional or statutory invested with power by law not sharing the sovereign power do not fall within the expression "state" as defined in Article 12 and those authorities which are invested with sovereign power, i. e. power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fa!l within the definition of "state" in Article 12 and consti-tutional or statutory bodies which do not share that sovereign power of the State are not "state" within the meaning of Article 12 of the Constitution. It is sufficient to point out that these observations were made by the learned Judge in disagreement with the majority opinion expressed by Bhargava J. , on behalf of Subha Rao, C. J. J. M Shelat. and C. K. Mitter JJ. , and, therefore, it is only the view expressed by the majority that must be considered as the law of the land. Consequently, we do not wish to labour with this point further. However, there are direct authorities on the point that a nationalised Bank is "the State" within the meaning of the term used in Article 12 of the Constitution. Reference in this connection may be made to Sukhdev Ratilal vs. The Chairman (Gujarat) (1), Lachhman Dass vs. Punjab National Bank (2) and United Commercial Bank vs. V. J. Vyas (3 ). We may also refer to the latest case of the Supreme Court on this point, reported as Raraana vs. I. A. Authority of India (6) wherein a clear distinction has been drawn between a corporation established by Statute and a corporation incorporated under the law, such as the Companies Act, 1956 or the Societies Registration Act, 1860. In para 19 of the Judg-ment their Lordships summerised the factors for determining whether a corpora-tion is an agency or instrumentality of Government, and they are - whether there is any financial assistance given by the State, and if so. what is the magni-tude of such assistance, whether there is any control of the management and policies of the Corporation by the State, whether the Corporation enjoys State-conferred or State protected monopoly status and whether the functions carried out by the Corporation are public function, closely related to governmental functions. It is sufficient to point out that after applying the illustrative tests laid down by their Lordships in Ramana vs. I. A. Authority of India (6), we are of the opinion that the respondent Bank which is a nationalised Bank under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 is a State. In this view of the matter, we over-rule the preliminary objection.