Rajasthan State Electricity Board,
Jaipur Vs. Mohan Lal & Ors [1967] INSC 84 (3 April 1967)
03/04/1967 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA RAO, K. SUBBA (CJ) SHAH, J.C.
SHELAT, J.M.
MITTER, G.K.
CITATION: 1967 AIR 1857 1967 SCR (3) 377
CITATOR INFO :
RF 1970 SC1446 (19) RF 1971 SC1828 (12) F
1975 SC1331 (26,37,63,76,78,124,182,192) RF 1976 SC2216 (7) E&R 1978 SC 548
(22) D 1979 SC 65 (3,10) E 1979 SC1628 (27) RF 1981 SC 212 (38,53) RF 1986
SC1571 (46) RF 1987 SC1086 (11) RF 1988 SC 469 (6,7,8)
ACT:
Employer and employee-Employees of State
Electricity Board Transferred to Board by State Government and treated as
permanent employees of Board-No order making them permanentIf permanent
employees of Board. Constitution of India, 1950, Art. 12-"Other
authority', meaning of.
Electricity (Supply) Act (54 of 1948)-State
Electricity Board constituted under Act-If "State".
HEADNOTE:
In 1958, the services of respondents I and 4
to 14, who were permanent employees of the State Government holding posts of
foremen. were provisionally placed at the disposal of the State Electricity
Board (appellant), constituted under the Electricity (Supply) Act, 1948, The
Electricity Board was directed to frame its own grades and service conditions,
but this was never done. In 1960, the first respondent was taken on deputation
from the Board and posted to the P.W.D.
of the State Government retaining his lien in
the Electricity Board. The first respondent remained with the P.W.D. for about
three years, and during that time, the Electricity Board promoted respondents 4
to 14 as Assistant Engineers under the Electricity Board. In 1963, the State
Government directed the reversion of the first respondent to his parent
department, namely. the Electricity Board; and the latter posted him as one of
its foremen. Zen big request that he was also entitled to be considered for promotion
as Assistant Engineer was rejected, he moved the High Court under Arts. 226 and
227 of the Constitution the ground that there was a violation of Arts. 14 and
16; and the High Court allowed the petition.
In appeal to this Court, the appellant-Board
contended that : (1) the first respondent never became its permanent servant
and so could not claim to be considered along with respondents 4 to 14 ; and
(2) the appellant-Board could not be held to be "State" as defined in
Art. 12 and consequently no direction could be issued to it under Art. 226 and
227.
HELD : (1) The words "deputation"
and "reversion" used in the orders of the State Government and the
Electricity Board implied that the first respondent was being sent back to his
parent department, namely, the Electricity Board, from the P.W.D. where he had
been sent on deputation. Moreover in the case of respondents 4 to 14 who were
identically placed with the first respondent, there was nothing to show that
after their services were provisionally placed at the disposal of the Board,
any order was passed permanently transferring them to the Board, and yet they
were treated as permanent employees of the Board. Thus, both the Government and
the Board, in dealing with respondent 1 and 4 to 14, treated them as it they
had become employees of the Board.
Since the Board did not frame any new grades
or service conditions, these respondents continued to be governed by identical
rules, namely, the old grades and service conditions applicable to them when
they were servants of the State Government and therefore, the first respondent
was entitled to be considered for promotion under the Board on the basis of
equality with respondents 4 to 14. [381E-F; 382D-H] 378 (2)(Per Subba Rao,
C.J., Shelat, Bhargava and Mitter JJ.):
The appellant-Board is "other
authority" within the meaning of Art. 12 and therefore, is
"State" to which appropriate directions could be given under Arts.
226 and 227. [386D] The expression "other authority" is wide enough
to include within it every authority created by a statute, on which powers are
conferred to carry out governmental or quasigovernmental functions and
functioning within the territory of India or under the control of the
Government of India.
It is not at all material that some, of the
powers conferred may be for the purpose of carrying on commercial activities,
because, under Arts. 19(1) (g) and 298 even the State is empowered to carry on
any trade or business. In interpreting the expression "other
authority" the principle of ejusdem generis should not be applied,
because, for the application of that rule, there must be distinct genus or
category running through the bodies previously named. The bodies specially
named in Art. 12 are the Executive Government of the Union and the States, the
Legislatures of the Union and the States and local authorities. There is no
common genus running through these named bodies, nor could the bodies be placed
in one single category on any rational basis. [384C-D, G-N, 385-A, C-D; 386B-C]
Ujjamnbai v. State of U.P., [1963] 1 S.C.R. 778 and K. S.
Ramamurti Reddiar v. The Chief Commissioner,
Pondicherry & Anr., [1964] 1 S.C.R. 656, followed.
United Town Electric Co. Ltd. v. Attorney
General for Newfoundland, [1939] 1 All. E.R. 423 (P.C.) applied.
Observations contra in University of Madras
v. Shanta Bai & Anr. A.I.R. 1954 Mad. 67, 68 B.W. Devadas v. The Selection
Committee for Admission of Students to the Karnatak Engineering College &
Others. A.I.R. 1964 Mys. 6, 9 and Krishan Gopal Ram Chand Sharma v. Punjab
University & Anr,., A.I.R. 1966 Punj 34, not approved.
(Per Shah, J.) : Every constitutional or,
statutory authority on whom powers are conferred by law is not "other
authority" within the meaning of Art. 12. It is only those authorities
which are invested with sovereign power, that is, power to take rules or
regulations and to administer or enforce them to the detriment of citizens and
others that fall within the definition of "State" in Art. 12 : but
constitutional or statutory bodies invested with power but not sharing the
sovereign power of the State are not "State" within the meaning of
that Article. [389B-C, G-H] Since, under Art. 13, it is only the State which is
prohibited from taking away or abridging fundamental -rights in considering
whether a statutory or constitutional body is "other authority"
within the meaning of Art. 12, it would be necessary to consider not only
whether against that 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 restrictions on fundamental rights. [387F] The State Electricity Board
has the power of promoting coordinated development, generation supply and
distribution of electricity and for that purpose is invested by the State with
extensive powers of control over electricity undertakings, The power to make
rule and regulations and to administer the Act is in substance the sovereign
power of the State delegated to the Board. Since the Board is an authority
invested by the Statute with sovereign powers of the State it is "other
authority" within the meaning of Art.
12. [386F-G; 387A-B] 379
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 466 of 1966.
Appeal by special leave from the judgment and
order dated May 14, 1965 of the Rajasthan High Court in D. B. Civil Miscellaneous
Writ Petition No. 469 of 1963.
S.T. Desai, H. K. Puri and K. K. Jain, for
the appellant.
R.K. Garg and S. C. Agarwala, for respondent
No. 1.
The Judgment of SUBBA RAO, C.J., SHELAT,
BHARGAVA and MITTER, JJ. delivered by BHARGAVA, J. SHAH, J. delivered a
separate Opinion.
Bhargava, J. The appellant in this appeal is
Electricity Board of Rajasthan, Jaipur (hereinafter referred to as "the
Board"), a body corporate constituted on 1st July, 1957, under the Electricity
(Supply) Act, 1948 (No. 54 of 1948).
Before the constitution of the Board, the
supply of electricity in the State of Rajasthan was being controlled directly
by a department of the State Government named as the Electrical and Mechanical
Department. Respondent No. 1, Mohan Lal, as well as respondents 4 to 14 were
all permanent employees of the State Government holding posts of Foremen in the
Electrical and Mechanical Department. On the constitution of the Board, the
services of most of the employees, including all these respondents, were
provisionally placed at the disposal of the Board by a notification issued by
the Government on 12th February, 1958, purporting to exercise its powers under
section 78A of Act 54 of 1948. In this notification a direction was included
that the Board was to frame its own new grades and service conditions under its
regulations, and the employees, whose services were transferred to the Board,
were to exercise option either to accept these new grades and service
conditions, or to continue ill their existing grades and service conditions,
except in regard to conduct and disciplinary rules, or to obtain relief from
Government service by claiming pension or gratuity as might be admissible on
abolition of posts under the Rajasthan Service Rules. The Board, however, did
not frame any new grades and service conditions at least up to the time that
the present litigation arose. Respondent No. 1 was, however, deputed by the State
Government by its order dated 27th January, 1960, after having worked under the
Board for a period of about two years, to the Public Works Department of the
Government. On 10th August, 1960, an order was made by the Government addressed
to the Secretary of the Board indicating that respondent No. 1 as well as
respondents 4 to 14 were to be treated as on deputation to the Board. On 24th
November, 1962, the Public Works Department passed an order reverting
respondent No. 1 to his parent department with effect 380 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 posting respondent No. 1 as a Foreman.
In the interval, while respondent No. 1 was working in the Public Works
Department, respondents 4 to 14 had been promoted by the Board as Assistant
Engineers, while respondent No. 1 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 promoted as Assistant Engineer under the Board, because
some of 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
considered for promotion with respondents 4 to 14. The second ground was that
the Board could not be held to be "State" as 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 Constitution.
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 consider 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 appellant 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 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 temporarily with
the Board and, later, became a permanent servant of the State in the Public
Works Department. The High Court ion 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 retained 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 promotion 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 provisionally, 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. 1
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 Department, it was laid down that he would retain his lien in the Power
Department.
According to Mr. Desai, the Power Department
mentioned in this order was meant to refer to the Electrical and Mechanical
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 382 from the post of Assistant Engineer in the Public Works
Department, the order which the Government passed specifically mentioned that
he was taken on deputation from the Board, and directed his reversion to his
parent department. In the order of reversion, 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 Department.
Even the Board itself, in its order dated
11th 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 1, Chambal Grid Sub-Station, Udaipur,
against a newly sanctioned post. Thus, the Board accepted the position that
respondent No. 1 was a servant of the Board and not an employee of the State
Government 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 from
the posts of Foremen on that basis. In the cases of these 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 permanently 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 alternatives to be given to each employee,
whose services were placed at the disposal of the Board, was either to be
governed by these new 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. 1 as well as
respondents 4 to 14 continued to be governed by the old grade-, and service
conditions applicable to them when they were servants of the State Government
in the Electrical and Mechanical Department where they were all serving as Foremen.
All of them being governed by identical rules, it is clear that respondent No.
1 was entitled to be considered for promotion under the Board on the basis of
equality with respondents Nos. 4 to 14.
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
Parliament of India and the Government and the Legislature of each of the
States and local authorities, and the expression "other authorities",
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 commercial activities. In support of his
proposition that the expression "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(1). The High Court,
considering 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 generis' with Government or Legislature, and, so construed, can only
mean authorities exercising governmental 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 Act
VII of 1923. It is not charged with the execution of any governmental
functions; its purpose is purely to promote education. Though section 44 of the
Act provides for financial contribution 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. Tile Selection Committee for
Admission of Students to the Karnatak Engineering College, and Others(1), 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 relation to other person or persons, may be able to
impose their will upon that other person or persons. But there is an essential
difference between a political association of persons called 'the State' giving
rise to political power connoted by the well known expression 'imperative law'
and a non-political association of persons for other purposes by contract,
consent or similar type of mutual understanding related to the common object of
persons so associating themselves together giving rise to a power which
operates not in the manner in which imperative law operates, but by virtue of
its acceptance by such associating persons based upon contract, consent or
mutual understanding." Proceeding further, the Court held : "The term
'authorities' occurring, in Art. 12 could only mean a person or a group of
persons who exercise the legislative or executive functions of a State or
through whom or through the (1) A.1,R. 1954 Mad.67.
(2) A.T.R. 1964 Mysore 6.
384 instrumentality of whom the State
exercise its legislative or executive power." The latest case on the point
cited by Mr. Desai is the decision of the Punjab High Court in Krishan Gopal
Ram Chand Sharma v. Punjab University and Another(1), where the decision ,given
in the case of University of Madras (2 ) 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 Government 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 generis when interpreting the
expression " other authorities" in Art. 12 of the Constitution, as
they overlooked the basic principle of interpretation that, to invoke the
application 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, application
of the ejusdem generis rule there must be a distinct 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 lacking, the rule cannot apply, but the mention of a single
species does not constitute a genus(3)." Maxwell in his book on
'Interpretation of Statutes' explained the principle by saying : "But the
general word which follows particular and specific words of the same nature as
itself takes its meaning 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(4)." In United
Towns Electric Co., Ltd. v.
Attorney-General for Newfoundland(5), 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 speciesfor example, water rates-does not constitute
a genus. In 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 (1) 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.
(5) (1939) 1 All E.R. 423.
(2) A.I.R. 1954 Mad.67.
(2) A.I.R. 1954 Mad. 67.
385 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 quasigovernmental
powers and authorised to administer a revenue producing public
enterprise." This dictionary meaning of the word "authority" is
clearly wide enough to include all bodies created by a statute on which powers
are conferred to carry out governmental or quasigovernmental 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.
In Smt,. Ujjam Bai v. State of Uttar
Pradesh(1), Ayyangar, J., interpreting the words "other authorities"
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 territory 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 laws." In K. S. Ramamurthi
Reddiar v. The Chief Commissioner, Pondicherry and Another(2), 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 mentioned (1) [1963] I S.C.R. 778.
(2) [1964] I S.C.R. 656.
386 in Art. 19(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 comprehended 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 circumstance 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 terms of
equality 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 promoting
coordinated development, generation, supply and distribution of electricity 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 transmission; to close down generating
stations; to compulsorily purchase generating stations, undertakings, mains and
transmission lines; to place wires, poles, brackets, appliances, apparatus,
etc; to fix grid tariff; to issue directions for securing the maximum economy
and efficiency in the operation of electricity undertakings, 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 387 those
directions. The Board is also invested by statute with extensive powers of
control over electricity undertakings. The power to make rules and regulations
and to administer the Act is in substance the sovereign power of the State
delegated to the Board. The Board is, in my judgment, "other
authority" within the meaning of Art. 12 of the Constitution.
I am unable, however, to agree that every
constitutional or statutory authority on whom powers are conferred by law is
"other authority" within the meaning of Art. 12. The expression
"authority" 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 III 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 III 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 allotted 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 restrictions 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 restrictions on very important and basic fundamental freedoms.
In my judgment, authorities constitutional or
statutory invested with power by law 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. Appeal dismissed.
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