RAJASTHAN STATE ELECTRICITY BOARD, JAIPUR v. MOHAN LAL & Ors.

from 1st December, 1962, but the period of deputation was later extended till 25th July, 1963. On 11th July, 1963, he. was actually reverted to the Board from the Public Works Department, and the Board issued orders postiiig respondent No. 1 as a Fore man. In the interval, while respondent No. 1 was working in the Public Works Department, respondents 4 to 14 had been pro moted by the Board as Assistant Engineers, while respondent No . l was promoted to work as Assistant Engineer in the Public .Works Department. On his reversion, respondent No. 1 claimed that he was also entitled to be fromoted as Assistant Engineer under the Board, because some o the other respondents promoted were junior to him, and, in the alternative, that, in any case, he was entitled to be considered for promotion. This request made by him to the Board as well as to the State Government was turned down and, thereupon, respondent No. 1 filed a petition under Articles 226 and 227 of the Constitution in the High Court of Rajasthan. Respondent No. 1 claimed that he was entitled to equality of treatment with respondents 4 to 14, and, inasmuch as he had not been considered for promotion with them by the Board, the Board had acted in violation of Articles 14 and 16 of the Constitution. The Board contested the petition on two grounds. The first ground was that respondent No. 1 had never become a permanent servant of the Board and never held any substantive post under it, so that he could not claim to be con sidered for promotion with respondents 4 to 14. The second ground was that the Board could . not be held to be "State" ail defined in Article 12 of the Constitution and, consequently, no direction could be issued to the Board by the High Court under Art. 226 or Art. 227 of the Constitution on the basis that the actions of the Board had violated Articles 14 and 16 of the Con stitution. The High Court rejected both these grounds, accepted the plea of respondent No. 1, quashed the order of promotion of respondents 4 to 14 and issued a direction to the Board to con sider promotions afresh after taking into account the claims .of respondent No. 1. The Board has now come up in appeal to this Court, by special leave, against this order of the High Court. Apart from the Board, the State of Rajasthan, and the Chief Engineer & Technical Member of the Rajasthan State Electricity Board, Jaipur, were also impleaded as opposite parties in the writ petition; and they are respondents 2 and 3 in this appeal. On the first question, Mr. S. T. Desai on behalf of the appel lant drew our attention to the notification dated 12th February, 1958, in which it was specifically laid down that the services of respondent No. 1 and respondents 4 to 14 were being placed at the disposal of the Board 'provisionally'. He has taken us through the various pleadings in the petition filed by respondent No. 1 to show that the case put forward by respondent No. 1 before the A • c D I ' G H ELECTRICITY BOARD v. MOHAN LAL (Bhargava, J.) 381 High Court was that he never became a permanent servant of the Board and was claiming that, after the winding up of the Electrical and Mechanical Department of the Government, he was tempor arily with the Board and, later, became a permanent servant of the State in the Public Works Department. The High Court, on the other hand, held that the pleadings of respondent No. 1 were obscure and that the correct position was that respondent No. 1 had become an employee of the Board, so that he was entitled to claim promotion in the service of the Board. There is no doubt that in paragraphs 5, 7, 9 and 14 of the petition respondent No. 1 had put forward the case that he was originally a servant of the State of Rajasthan and continued to be such throughout and re· tained his lien on that Government service. In paragraph 27, an alternative pleading was also put forward on his behalf that, if it be held that, on the abolition of the Electrical and Mechanical Department of the State, he had no lien with the Government and his services were permanently transferred to the Board, he was placed in identical circumstances as the other respondents 4 to 14 and continued to be governed by the service conditions which were applicable to him when he was in the service of the State Government, so that he was entitled to be considered for promo tion with respondents 4 to 14. It is also correct that, initially, when the services of the various respondents were placed at the disposal of the Board, the Government purported to· do so provi sionally, and at no later stage did the Government pass any order transferring their services to the Board permanently. It, however, appears that both the Government and the Board, in dealing with respondent No. 1 as well as the other respondents, treated them as if they had become employees of the .Board. The services of respondent No. I were placed at the disposal of the Public Works Department where he remained for a period of a little over three years, but he was all the time treated there as on deputation. At that time, in the order posting him to the Public Works Depart ment, it was laid down that he would retain his lien in the Power Department. According to Mr. Desai, the Power Department men tioned in this order was meant to refer to the Electrical and Mecha nical Department of the Government which used to be popularly known by that name. We, however, found in the judgment of the High Court that the High Court attempted to gather the meaning of the expression "Power Department" by questioning the counsel for the Board and the officer-in-charge of the Board who appeared before the High Court and was able to discover that there is no Power Department existing as such and that this was just another name for the State Electricity Board. On this view of the High Court, the order of the Government dated 27th January, 1960, Would indicate that the lien of respondent No. 1 was on a post under the Board. Further, when respondent No. 1 was relieved B c D E F G H 382 SUPREME COURT REPORTS [!967] 3 S.C.R. from the post of Assistant Engineer in the Public Works Depart ment, the order which the Government passed specifically men tioned that he was taken on deputation from the Board, and direc ted his reversion to his parent department. In the order of re version, respondent No. 1 was thus treated as an employee of the Board which was described . as his parent department and from which he had been taken on deputation in the Public Works De partment. Even the Board itself, in its order dated 1 lth July, 1963, proceeded on the basis that respondent No. 1 had reverted from the Public Works Department and made a direction that, on reversion from that Department, he was posted as Foreman I, Chambal Grid Sub-Station, Udaipur, against a newly sanctioned post. Thus, the Board accepted the positon that respondent No. 1 was a servant of the Board and not an employee of the State Gov ernment in the Public Works Department. The word "reversion" used in the order clearly implied that, even according to the Board, respondent No. 1 was being sent back to his parent Department from a Department where he had been sent on deputation or temporarily. A further consideration is that respondents Nos. 4 to 14 were treated by the Board as its permanent employees and were actually granted promotion to the posts of Assistant Engineers ln the cases of these from the posts of Foremen on that basis. respondents also, there is nothing to show that, after their services were provisionally placed at the disposal of the Board by the notification dated 12th February, 1958, any order was passed per manently transferring them to the Board and, yet, they were treated as permanent employees of the Board. Respondent No. 1 was identically placed; and, in these circumstances, we are unable to hold that the High Court committed any error in holding that respondent No. 1 was in the service of the Board just as were respondents 4 to 14. The notification dated 12th February, 1958, had specifically laid down that the Board was to frame its new grades and service conditions and one of the alt ornatives to be given to each employee, whose services were placed at the disposal of the Board, was either to be governed by these n~w grades and service conditions, or to continue to be governed by the grades and service conditions already applicable to them when they were in the Electrical and Mechanical Department. Since the Board did not frame any new grades or new service conditions, it is clear that respondent No. I as well as respondents 4 to 14 continued to be governed by the old grades and service conditions applicable to them when they were servants of the State Government in the Electrical and Mechanical Department where they were all serv ing as Foremen. All of them being governed by identical rules. it is clear that respondent No. I was entitled to be considered for promotion under the Board on the basis of equality with respon dents Nos. 4 to 14. A B c D E F G H BLBCTRICITY BOARD v. MOHAN LAL (Bhargava, J.) 383 On the second point that the Board cannot be held to be "State" within its meaning in Art. 12 of the Constitution, Mr. Desai urged that,- on the face of it, the Board could not be held to be covered by the authorities named therein, viz .• the Government and Parlia ment of India and the Government and the Legislature of each of the States and local authorities, and the expression "other authori ties", if read ejusdem generis with those named, cannot cover the Board which is a body corporate having a separate existence and has been constituted primarily for the purpose of carrying on com merical activities. In support of his proposition that the expres sion "other authorities" should be interpreted ejusdem generis, he relied on a decision of the Madras High Court in The University of Madras v. Shantha Bai and Another('). The High Court, con sidering the question whether a University can be held to be local or other authority as defined in Art. 12, held : "These words must be construed 'ejusdem g~nerls' with Government or Legislature, and, so construed, can only mean authorities exercising governmen tal functions. They would not include persons natural or juristic who cannot be regarded as instrumentalities of the Government. The University of Madras is a body corporate created by Madras It is not charged with the execution of any Act VII of 1923. governmental functions; its purpose is purely to promote educa tion. Though section 44 of the Act provides for fiilancial contri bution by the local Government, the University is authorised to raise its own funds of income from fees, endowments and the like. It is a State-aided institution, but it is not maintained by the State." In B. W. Devadas v. The Selection Committee for Admission of Students to the Karnatak Engineering .College, and Others('), the High Court of Mysore similarly held : "The term 'authority' in the ordinary dictionary sense may comprise not merely a person or a group of persons exercising governmental power, but also any person or group of persons who, by virtue of their position in rela tion to other person or persons, may be able to impose their will upon that other person or persons. But there is an essential diffe rence between a political association of persons called 'the State' giving rise to political power connoted by the well-known expres sion 'imperative law' and a non-political association of persons for other purposes by contract, consent or similar type of mutual un derstanding related to the common object of persons so associatin'1: themselves together giving rise to a power which operates not in the manner in which imperative law operates, but bv virtue of its ac ceptance by such associati~g persons based upon contract, con sent or mutual understanding." Proceeding further, the Court held : "The term 'authorities' occurring in Art. 12 could only mean a person 01 ~ group of persons who exercise the legislative or executive functions of a State or through whom or through the B c D F G H (ll A.1.R. 19~4 ~~:-d. ~i. 384 SUPREME COURT REPORTS [1967] 3 s.c.R. instrumentality of wllom the State exercises its legislative or execu tive power." The latest case on the point cited by Mr. Desai is lhe decision of the Punjab High Court in Krishan Gopal Ram Chand Sharma v. Punjab University and Another('), where the decision given in the case of University of Madras(') was followed and the principle laid down therein was approved and applied. On the basis of these decisions, and the principles laid down therein, it was urged that an examination of the provisions of the Electricity Supply Act will show that the Board is an autonomous body which cannot be held to be functioning as an agent of the Executive Gov ernment and, consequently, it should be held that it is not "State" within the meaning of Art. 12 of the Constitution. In our opinion, the High Courts fell into an error in applying the principle of ejusdem gener/s when interpreting the expression "other authorities" in Art. 12 of the Constitution, as they over looked the basic principle of interpretation that, to invoke the ap plication of ejusdem generis rule, there must be a distinct genus or category running through the bodies already named. Craies on Statute Law summarises the principle as follows : - "The ejusdem generis rule is one to be applied with caution and not pushed too far .... To invoke the appli- cation of the ejusdem generis rule there must be a dis- . tinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is rule cannot apply, but the mention of a single species does not con- stitute a genus( 8 )." lacking, Maxwell in his book on 'Interpretation of Statutes' explained the prlnciple by saying : "But the general word Which follows parti- cular and specific words of the same nature as itself takes its mean ing from them, and is presumed to be restricted to the same genus as those words .... Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine(')." In United Towns Electric_ Co., Ltd. v. Attorney-General for New foundland(8), the Privy Council held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species-for example, water rates-does not constitute a genus. Jn Art. 12 of the Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislatures of the Union and the States, and local authorities. We are unable to find any common genus running through these A B c D E F G (!) A.I.R. 1966 Punj. 34, (3) Craies on Statute Law, 6th Edn., p, 181. (4) Maxwell on Interpretation of Statutes, 11th Edn. pp, 326, 327. (S) (1939) 1 All B.R. 423. 12\ A.I.R. 1954 Mad. 67, H'· ' - ELECTRICITY BOARD v. MOHAN LAL (Bhargava, J.) 385 A I c D E (I G H named bodies, nor can these bodies be placed in one single category on any rational basis. The doctrine of ejusdem generis could not, therefore, be applied to the interpretation of the expression "other authorities" in this article. The meaning of the word "authority" given in Webster's Third New International Dictionary, which can be applicable, is "a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue-producing public enterprise." This dictionary meaning of the word "authonty" is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi governmental functions. The expression "other authorities" is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words "other authorities" are used in Art. 12 of the Constitution. the words "other authorities" In Smt. Ujjam Bai v. State of Uttar Pradesh('), Ayyangar, J., interpreting in Art. 12, held : "Again, Art. 12 winds up the list of authorities falling within the definition by referring to 'other authorities within the territory of India which cannot obviously be read as ejusdem generis with either the Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the ter ritory of India or under the control of the Government of India. There is no characterisation of the nature of the 'authority' in this residuary clause and consequently it must include every type of authority set up under a statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those Jaws." In K. S. Ramamurthi Reddiar v. The Chlef Commissioner, Pondicherry and Another('), this Court, dealing with Art. 12, held : "Further, all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be under the control of the Government at all." These decisions of the Court support our view that the expression "other authorities" in Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as men- (!} [1963] I S.C.R. 778, (2) [1964] I S.C.R. 656. 386 SUPREME COURT .RJ!PORTS [l 967] 3 s.c.R. tioned in Art. l 9(1)(g). In Part IV, the State has been given the same meaning as in Art. 12 and one of the Directive Principles laid down in Art. 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Art. 12, is thus comprehen ded to include bodies created for the purpose of promoting the educational and economic interests of the people.. The State, as constituted by our Constitution, is further specifically empowered under Art. 298 to carry on any trade or business. The circum stance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word "State" as used in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is punishable as a criminal offence. In these circumstances, we do not consider it at all necessary to examine the cases cited by Mr. Desai to urge before us that the Board cannot be held to be an agent or instrument of the Government. The Board was clearly an authority to which the provisions of Part III of the Constitution were applicable. We have already held earlier that, in dealing with the case of respondent No. 1, the Board did not treat him on tenns of equa lity with respondents Nos. 4 to 14 and did not afford to him the opportunity for being considered for promotion to which he was entitled on that basis. The High Court was, therefore, right in allowing the petition of respondent No. 1. The appeal is dismissed with costs. Shah, J. I agree with the order proposed by Bhargava, J The Board is an authority invested by statute with certain sovereign powers of the State. It has the power of prc>moting co ordinated development, generation, supply and distribution of elec tricity and for that purpose to make, alter, amend and carry out schemes under Ch. V of the Electricity (Supply) Act, 1948, to engage in certain incidental undertakings; to organise and carry out power and hydraulic surveys; to conduct investigation for the improvement of the methods of transmiision; to close down gene rating stations; to compulsorily purchase generating stations, un dertakings, mains and transmission lines; to place wires, poles. brackets, appliances, apparatus, etc; to fix grid tariff: to issue direc tions for securing the maximum economy and efficiency in the operation of electricity undertakines: to make rules and regulations for carrying out the purposes of the Act; and to issue directions under certain provisions of the Act and to enforce compliance with A B c D E F G H A B c D E F G H l!LBCTRICITY BOARD v. MOHAN LAL (Bhargava, J.) 3 8 7 those directions. The l3oard ~ also invested by statute with ex· tensive powers of control over electrici~m1:~gs. The power · · ter the Act is in sub· to make rules and regulations and to a stance the sovereign power of the State delegated to the l3oard. The Board is, in my judgment, "other authority" within the mean· ing of Art. 12 of the Constitution. I am unable, however, to agree that every constitutional or sta· tutory authority on whom powers are conferred by law is "other authority" within the meaning of Art. 12. The expression "autho· rity" in its etymological sense means a body invested with power to command or give an ultimate decision, or enforce obedience, or having a legal right to command and be obeyed. The expression "State" is defined in Art. 12 for the purpose of Part ill of the Constitution. Article 13 prohibits the State from making any legislative or executive direction which takes away or abridges the rights conferred by Part ill and declares any law or executive direction in contravention of the injunction void to the extent of such contravention. In determining what the expression "other authority" in Art. 12 connotes, regard must be had not only to the sweep of fundamental rights over the power of the authority, but also to the restrictions which may be imposed upon the exercise of certain fundamental rights (e.g., those declared by Art. 19) by the authority. Fundamental rights within their allot· ted fields transcend the legislative and executive power of the sovereign authority. But some of the important fundamental rights are liable to be circumscribed by the imposition of reasonable res· trictions by the State. The true content of the expression "other authority" in Art. 12 must be determined in the light of this dual phase of fundamental rights. In considering whether a statutory or constitutional body is an authority within the meaning of Art. 12, it would be necessary to bear in mind not only whether against the authority, fundamental rights in terms absolute are intended to be enforced, but also whether it was intended ·by the Constitution· makers that the authority was invested with the sovereign power to impose fundamental freedoms. important and basic restrictions on very · In my judgment, authorities constitutional or statutory invest· ed with power by Jaw but not sharing the sovereign power do not fall within the expression "State" as defined in Art. 12. 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 fall within the definition of "State" in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State are not, in my judgment, "State" within the meaning of Art. 12 of the Constitution. V.P.S. L 5 Sup. Cl/67-12 Appeal dismissed.