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TMI Blog1965 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Engineers and later confirmed, as such his case had been entirely ignored and over-looked and in doing so Articles 14 and 16 of the Constitution had been flagrantly violated, that he was senior to all of them and that there was nothing to disqualify him from promotion and consequently the order of Rajasthan Electricity Board dated the 29th April, 1961 (Ex. 7) by which the aforesaid 11 respondents were promoted as officiating or temporary Assistant Engineers be quashed, and although this prayer has not been specifically included in the writ petition it was further prayed before us that the subsequent orders of the authorities concerned confirming them in the said post be also quashed. It was further prayed that a direction be issued to the Board to consider the petitioner's case for promotion and assign his due seniority to him. This application has been opposed before us by the Rajasthan State Electricity Board, who is respondent No. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, could not be put in one and the same class and consequently Article 14 could have no application. On this conclusion no other question really arose though one of the learned Judges who decided that case (Bapna J.) went on to hold that Article 14 could not be attracted into application as the Central Board of Secondary Education, Ajmer would not fall within the ambit of the expression State as used in that Article, or Article 12 of the Constitution. It was further held in this connection that the regulations framed by the Board were not laws within the meaning of Article 13 of the Constitution. The other learned Judge (Sharma J.), who was a party to this case, refrained from expressing his opinion on this second aspect of the case, referred to above, as he thought that it was not necessary to decide for the purposes of that case whether the Central Board of Secondary Education Ajmer fell within the definition of the 'State', and whether the impugned regulation of the Board was covered by the definition of 'law' under Article 13 of the Constitution. We should also like to point out with all respect that the view expressed by Bapna J. on this aspect of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it may have been given under Sub-section (1) of Section 5. Chapter IV deals with the power and duties of a State Electricity Board. Broadly speaking, the duty of the Board is to promote and control the co-ordinated development of the generation supply and distribution of electricity in the most efficient and economical manner possible throughout the length and breadth of the State. And after the Board has declared its intention to supply electricity for any purpose in any area, for which purpose and in which area it is competent to supply electricity, no licensee notwithstanding the provisions of the license of which he may already be in possession, shall at any time be entitled to supply electricity for that purpose in that area without the consent of the Board. To achieve the objectives assigned to it under the Act the Board has been armed with extensive statutory powers vide Sections 18 to 27 of Chapter IV and Sections 28 to 58 of Chapter V. Among these, special attention may be invited to Section 36, which enables a Board to call upon a licensee Owning a generating station to close it down under certain circumstances and make other suitable arrangements as may be necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r certain sections of the Act specified therein shall be punishable with fine which may extend to five hundred rupees and in the case of a continuing offence with a further fine which may extend to fifty rupees for each day after the first during which the offence continues. Section 79 enacts that the Board may make regulations not inconsistent with the Act and the rules made by the Government thereunder to provide for the various matters specified therein and Clause (c) thereof pertains to the duties of officers and servants of the Board and their salaries, allowances and other conditions of service. 7. Having regard to the broad survey that we have made of the provisions of the Act relating to the constitution and the powers and duties of the Board, we are disposed to hold the opinion that it properly falls within the definition of the word State contained in Article 12 of Chap. III of the Constitution (which deals with fundamental rights) and which definition reads as follows : In this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the Legislature of each of the States and all loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which have been specifically mentioned in the Article and are doubtless covered by the definition. In support of the view which we have felt persuaded to accept, reference may be made to Bramadathan Nambooripad v. Cochin Devaswom Board AIR 1956 Trav-Co 19 (FB); Sarangpani v. Port Trust of Madras, AIR 1961 Mad 234 and S.K. Mukherjee v. Chemicals and Allied Products, Export Promotion Council. From the discussion that we have made above, it must follow as a corollary that if the Board in ordering certain promotions of the personnel working under it has failed to afford an equal opportunity to any of them, then there can be no doubt that the failure to do so would attract the application of Article 16 of the Constitution. We hold accordingly. 8. It remains for us to deal with a subsidiary argument which was raised by learned counsel for the Board to exclude the applicability of Article 16 and that is that as the petitioner happened to be serving on deputation in the Public Works Department at the time the impugned selection to certain higher posts was made by the Board and respondents Nos. 4 to 14 were directly serving under it at the relevant time, it could not be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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