CASE NO.: Appeal (civil) 1847-48 of 1989 PETITIONER: TRILOCHAN LENKA AND ORS. STATE OF ORISSA AND ANR. RESPONDENT: MANDI MOHAN SETHI AND ANR. DR. BISWA KALYANA PATTNAIK AND ORS. DATE OF JUDGMENT: 26/04/1995 BENCH: R.M. SAHAI & B.L. HANSARIA JUDGMENT:
JUDGMENT
1995 (3) SCR 797
The Judgment of the Court was delivered by
HANSARIA, J. The two appeals require decision of one common question,
namely, whether the Orissa State Electricity Board, hereinafter ‘the Board,
was required to comply with the requirements of the Orissa Reservation of
Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes)
Act, 1975, for short ‘the Act’, before the Board had resolved to implement
the provisions of the Act in its meeting held on 15.3.82. This date is
material because it is prior to this date that benefit of the Act was
sought for and allowed by the Orissa High Court on being approached by two
members of the Scheduled Castes who are respondent No. 1 in both the
appeals, which have been filed by the affected service holders of general
category and the State.
2. The case of the Scheduled Castes service-holders before the High Court
was that the provisions of the Act applied by virtue of a direction given
by the State Government, as empowered by section 78-A of the Electricity
(Supply) Act more so, because the Board itself had required all concerned
to act in accordance with the provisions of the Act by letter dated 3.7.76
issued by its Deputy Secretary, on receipt of copy of Government letter
dated 25.9.76. The High court accepted the contention and directed the
Board to act in accordance with the provisions of the reservation provided
in the Act.
3. Shri Venkataramani, appearing for the aforesaid respondents, has
buttressed the stand taken by the respondents by submitting that de hors
the aforesaid circular and letter, the Act ipso facto applied to the
services under the Board inasmuch as the Board is a “State” within the
meaning of Article 12 of the Constitution; and the Act, even as enacted,
had applied to all appointments to the posts and services under the State.
4. Let the aforesaid submission be first examined. The word “State” was
defined in the Act, when enacted, to include the Government and the
Legislature of the State of Orissa. Orissa Act 9 of 1982, which came into
force with effect from 1.6.82, enlarged the definition to include all local
or other authorities within the State or under the control of the State
Government. The word “State” as used in the Act has to be understood in the
sense the legislature wanted this word to be understood. But Shri
Venkataramani strenuously urges that the Board being “State” within the
meaning of Article 12, the definition of this word in the Act as enacted
would not alter the constitutional position, especially when the definition
is inclusive in nature. We have considered the matter with all seriousness
it deserves, because of the benefit which would accrue, on agreeing with
Shri Venkataramani, to the weaker sections of the society. Despite such
approach to the question, we find ourselves unable to concede to the
submission of the learned counsel because when the legislature, while
defining the word “State”, mentioned initially even about the Government in
the inclusive part. So, it cannot be accepted that the Board would come
within the purview of the definition in the general word “State”. For this
reason, we do not further agree with Shri Venkataramani that the amendment
of 1982 was only clarificatory in nature. According to us, but for the
amendment, an entity like Board would not have been a part of “State”. So,
we hold that the Act as enacted did not apply, by its own force, to the
employees of the Board.
5. It is really the second contention which had prevailed with the High
Court, which is that the Act even before this amendment in 1982 had become
operative qua the employees of the Board, because of the aforesaid letter
of the Deputy Secretary of the Board issued on 3.7.76, which, as already
noted, had come to be issued after the letter of the Government dated
29.5.76.
6. Shri Venkataramani has urged that the letter of Government itself has to
be taken as a direction issued by it in exercise of powers under section
78-A of the Electricity (Supply) Act, which provision requires the Board to
be guided by such directions on question of policy as may be given to it by
the State Government. Question is whether the letter in question was a
direction to the Board to implement the provisions of the Act. A perusal of
the letter shows it emanated from the Secretary of the Government of
Orissa, Tribal and Rural Welfare Department, and was addressed to all the
Secretaries to the Government/Heads of the Departments/Collectors. Neither
the letter was addressed to the Board nor is there anything to show that
any of the functionaries to which the letter was addressed was required to
issue any direction to the Board to implement the provisions of the Act.
We, therefore, do not agree with Shri Venkataramani that this letter itself
made the provisions of the Act applicable to appointments to the posts and
services under the Board. May it be mentioned here that while issuing
notice in the SLP connected with CA.No. 1847 of 1989, the State Government
was directed to file affidavit explaining the legal position regarding
reservation of posts for Scheduled Castes and Scheduled Tribes in the Board
and other bodies functioning under the control of the Government. The
affidavit states in paragraph 4 that prior to the amendment of 1982, the
provisions of the Act could not be made applicable to the employees of the
Board and other Government undertakings and corporations. So, the second
contention too of Shri Venkataramani has no force.
7. There is, however, plausibility in the third argument, as the letter of
the Deputy Secretary of the Board dated 3.7.76 required all concerned to
act in accordance with the provisions of the Act; and it is indeed this
letter which is the basis of the High Court’s judgment. The stand of the
Board qua this letter is that it had not been issued by the Deputy
Secretary pursuant to any resolution of the Board, which really came to be
adopted in its 266th meeting held on 15.3.82, as would appear from the
Office Order of the Board dated 29.3.82.
8. Shri Venkataramani submits that long before the adoption of the
aforesaid resolution, the Board had started acting in accordance with the
provisions of the Act, as would appear from the letter of the Secretary of
the Board dated 7th March, 1979, which is Annexure VII to the counter-
affidavit of respondent No. 1 filed in CA No. 1847/89. By that letter, the
Secretary had asked the Superintendent Engineer, Electrical Circle, Cut-
tack, that while filling up the posts in question the principle of
reservation of posts for Scheduled Castes/Scheduled Tribes candidates have
to be kept in view. Annexure VIII series shows that even appointments had
been made on 31st August, 1978 and 19th September, 1979 against
posts/vacancies reserved for Scheduled Castes and Scheduled Tribes
candidates. Our attention is also invited to Annexure VI, which is a letter
of the Deputy Secretary of the Board written on 22.12.1977 to the Under
Secretary, Government of Orissa, on the subject of violation of the
provisions of the Act. The letter was in reply to certain query by the
Government and it stated that no Scheduled Castes and Scheduled Tribe
candidate was avail-able within the zone of consideration for promotion
when the Board gave promotion in the month of July, 1976.
9. The aforesaid does show that the Board had started acting in accordance
with the provisions of the Act. Question is whether this course of action
can be said to have conferred a right on the members of the Scheduled
Castes/Scheduled Tribes, so much so, as to get it enforced through a court
of law. As to this, we would observe that the fact that the provisions of
the Act were acted upon by the Board fell short of the provisions of the
Act having become a condition of services of the employees of the Board.
For this, according to us, a formal decision of the Board was required,
which, as already noted, was taken in the meeting held on 15.3.82. Before
that date the employees were not clothed with any legal right to demand
observance of the provisions of the Act.
10. This being the position, we are constrained to hold that the impugned
judgments of the High Court are not sustainable and the same are,
therefore, set aside. It is, however, made clear that if any of the
Scheduled Castes/Scheduled Tribes employee of the Board had been given the
benefit of the provisions of the Act even before the decision of the Board
dated 15.3.82, their services would not be in any way adversely affected
because of this judgment of ours and they would continue to enjoy the
benefits conferred on them.
11. The appeals are allowed accordingly. The parties would bear their own
costs throughout.
Appeals Allowed.