Kan Singh, J.
1. The writ petition before me is by one Shrikishan, who was an employee in the power-house of the Rajasthan State Electricity Board, hereinafter to be referred as the Board, and by the same he questions his retirement ordered by the respondents in pursuance of the Rajasthan Services (Amendment) Rules, 1967, with effect from 1 July 1967. The case set up by the petitioner was briefly this.
2. Petitioner was born on 1 July 1910 and he Joined the Government service in the year 1927 on being appointed as wireman at the State power-house in the former State of Kishangarh. With the formation of Rajasthan the petitioner became the employee of the State of Rajasthan. He was a head lineman II with effect from 1 April 1950. Sometime in 1957, the Rajasthan State Electricity Board was constituted in pursuance of the relevant provisions of the Electricity (Supply) Act, 1948, hereinafter to be referred as the Act. Petitioner claims that after the formation of the Board, the State Government had issued statutory directions under Section 78A of the Act; in accordance therewith he eventually became an employee of the Board. He proceeds to say that the Board had not fixed any superannuation age for its employees including the petitioner. According to the petitioner, sometime in the year 1963, the Board prepared the draft standing orders for laying down the conditions of service of its employees and submitted them before the certifying officer in accordance with the provisions of the Standing Orders Act, 1946. Petitioner maintains that in the draft standing orders the Board had provided for the age of superannuation of its employees and it was proposed to be at 55 years. The union of the workers, who received the notice about the certification of the draft standing orders, opposed the certification of the standing orders as proposed by the Board, and on the other hand, suggested that the age of superannuation should be 60 and not 55, as proposed by the Board. Petitioner claims that the certification officer, in the circumstances disclosed before him, did not certify the order about the age of superannuation and the draft standing orders subject to the modification regarding age were certified by him. In these circumstances, according to the petitioner, there existed no standing order governing the question of superannuation and the petitioner contends that he could not have been retired merely on account of his reaching the age of 55 years. As regards the Rajasthan Service Rules that were sought to be applied to the petitioner on account of the amendment regarding the age of superannuation which was reduced from 58 to 55, the petitioner's case, in short, is that he is not at all governed by the Rajasthan Service Rules as he was no longer an employee of the State Government but an employee of the Board.
3. The writ petition has been opposed by the respondents. The reply of the Board is that the services of the petitioner like other employees in the power-houses of the State were provisionally placed at the disposal of the Board and in the circumstances the petitioner was only on deputation and never came to be absorbed in the service of the Board. Consequently, according to the respondents the Rajasthan Service Rules continued to apply to the petitioner and when the Rajasthan Service Rules were amended sometime in June 1967 so far as the age of superannuation of the State employees was concerned, the petitioner came to be reverted by virtue of the notification issued by the State Government and then he stood retired from 1 July 1967. In other words, the reply of the Board is that the petitioner was a State employee, as he was before his services were placed at the disposal of the Board and could rightly be retired on reaching the age of 55 years in terms of the Rajasthan Service Rules as amended in June 1967. It was farther submitted that even after the transfer of the power-houses by the State Government to the Board the State Government continued to exercise disciplinary control over the employees whose services were placed at the disposal of the Board. Learned counsel for the Board also took the plea that it was a disputed question of fact whether the petitioner was or was not a State employee to be governed by the Rajasthan Service Rules and this Court should not deal with each a question in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution. Learned counsel had also put in a separate application wherein he had taken this plan that on account of there being a serious dispute on the material fact whether the petitioner was or was not an employee of the State, the writ petition should be rejected on the preliminary ground.
4. The state of Rajasthan has filed a separate reply, though at a later stage, but has more or less fallen in line with the reply submitted by the Board.
5. When the case came up for heaving before me on 22 August 1968, I felt that for seeing whether the petitioner remained merely on deputation and thus continued to be a Government employees after the transfer of power-houses to the Board, the Court should be informed if in accordance with the provisions of Rule 18 of the Rajasthan Service Rules the petitioner's lien was kept on any permanent post or his lien was suspended on any permanent poet. I then thought that by and large this would be a decisive factor. The respondents were not able to place before me any Government order by which the lien of the petitioner can be said to have been kept on any permanent post or it may be taken to have been suspended on some permanent post. In other words, no information had been furnished to the effect if any post was kept for the petitioner. Learned councel for the Board, however, submitted a copy of a letter written by the Assistant Secretary to the Government, to the Secretary, Rajashtan State Electricity Board, Jaipur, in reply to a demi-official letter addressed by the latter to the former on 22 August 1968. I may read that letter:
[Subject.-Service conditions of and employees of the Electrical and Mechanical Department on deputation to the Rajasthan State Electricity Board.]
I am directed to refer to your demi-official latter No. RSEB/S-3/D/1458, dated 22 August 1968, on the subject noted above and to say that the services of the Government employees of the Electrical and Mechanical Department, both permanent and temporary, were provisionally placed at the disposal of the Rajasthan State Electricity Board with effect from 1 July 1957-vide order No. 13 OSD/Elect/BD/57, dated 12 February 1958. Their services have not been transferred to the Board and they still hold a lien under the Government.
6. On the basis of this letter it was sought to be argued that the petitioner still holds a lien under the Government. I will have occasion to deal with this letter in the course of the discussion that immediately follows.
7. The principal question that falls for determination is whether the petitioner was a State employee and he was not absorbed in the service of the Board, but continued to be on deputation with the Board so that he could be retired on the basis of the Government notification issued on 13 June 1987 in terms of Rule 66 of the Rajasthan Service Rules, 1951, as they stood amended on 13 June 1967. The first thing that calls attention is as to what was the arrangement between the Board, on the one hand, and the State Government; on the other, when with the transfer of powar houses belonging; to the Stats to the Board the personnel of the Electricity Department of the State came to be transferred to the Board. For that I may examine the Government order dated 12 February 1953 which was issued by the Governor in exercise of his powers under Section 78A of the Act. As considerable argument on either side has centered round the language of this order, I may read this order:
GOVERNMENT OF RAJASTHAN
Public Works (B) Department
dated 12 February 1956
The Governor is hereby pleased to place the services of the employees of the Electrical and Mechanical Department excluding the Electrical Inspectorate of the State at the disposal of the Rajasthan Electricity Board constituted on 28 June 1967 under the provisions of the Central Electricity (Supply) Act, 1948 (54 of 1948). The manner under which the service conditions are to be regulated, is indicated below:
(1) The services of the Government employees of the Electrical and Mechanical Department, both permanent and temporary, shall be provisionally placed at the disposel of the Rajasthan Electricity Board with effect from 1 July 1967.
(2) The Board shall be required to permit each Government servant to exercise option either to:
(a) accept the new grades and service conditions framed by the Board under its regulations ; or
(b) continue in the present grades and service 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 trader the Rajasthan Service Rules (Rules 215 to 226).
(3) In case of permanent Government servants of the Electrical and Mechanical Department opting to continue in the service of the Board subject to these existing conditions, the grant of pension is guaranteed by the Government subject to an arrangement to be made with the Board.
(4) The Government servants are to be permitted to avail themselves of leave earned under the Governments after their transfer to the Board to draw the salary therefore, in accordance with an arrangement to be made with the Board.
2. These directions are issued to the Rajasthan State Electricity Board under Sub-section (sic) of Section 73A of the Electricity (Supply) Act, 1948.
(By order of Governor)
Secretary to Government.
8. While it is contended by learned Counsel for the petitioner that by virtue of this order it was the duty of the Board to permit each of the employees to exercise option either to accept the new grades and service conditions framed by the Board under its regulations or to continue in the present grades and service conditions except in regard to conduct and discipline ruler or to obtain a relief from the Government service by claiming pension or gratuity as may be admissible on abolition (sic) of costs in accordance with the Rajasthan Service Rules. It is pointed out that the only option given to a Government service transferred to the Board was either to opt for the Board's service conditions minus conditions relating to discipline and conduct or to accept the Service conditions as the Board may lay down according to its regulations for the various employees and, if any of these two courses were not acceptable to him, then the only alternative left with the employee was to claim pension and gratnity benefits from the State Government on the footing that the posts hitherto held by him under the State Government came to an end. On the other hand, learned Counsel for the Board has suggested that the employee had a further choice to remain in Government Service and he could continue under the State Government though it may be open to the State Government to deal with him according to its rules. Learned counsel emphasized that Clause (1) of this order was susceptible of only one interpretation, namely, that the service of the employees of the State were only temporarily placed at the disposal of the Board and they were to be that treated on deputation. He further argued that unless and until the Board had given the option to the Government servants in terms of Clause (2) of the order or till the Government servant concerned had exercised his option, Clause (a), (b) or (c), therefore, did not come into operation. Thus, according to the learned Counsel, irrespective of the length of time for which an employee may serve the Board, be will be deemed to be on deputation and not taken to have been absorbed in the service of the Board.
9. I have carefully considered the language of the order. It has to be examined in the light of the Rajasthan Service Rules which lay down the conditions of service for State employees and also make provision for deputation of Government servants to foreign employments and the conditions of such deputations are also laid down therein. I have already made a reference to Rule 18 of the Rajasthan Service Rules. It provided that a Government servant's lien on a post may in no circumstances be terminated, even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post. Chapter XIII in Part V of the Rajasthan Service Rules lays down the conditions for transfer of an employee to foreign service. As at the relevant time, that is, in the year 1968, Rule 141 of the Rajasthan Service Rules expressly provided that no Government servant may be transferred to foreign service against his will. There could be no deputation of the Government servant to a foreign employment as such without the consent of the employees. I ought to mention that Rule 141 of the Rajasthan Service Rules was subsequently amended on 12 August 1960 and a Government servant could thereafter be transferred to foreign service against his will to services of a body incorporated or not, which is wholly or substantially owned or controlled by the Government; this farther applies to the transfer of a Government servant to service paid from a Panchayat Samiti/Zila Parishad fund constituted under the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959. Nobody has even pretended that before placing the services of the petitioner or other such employees anybody had taken their consent for such a transfer. The Government could not be taken to be unmindful of the provisions of the Rajasthan Service Rules as they existed on the date order Ex. A was passed. It is in this context that the implications of order Ex. A have to be found out. Sub-clause (c) of Clause (2) expressly refers to Rules 215 to 226 of the Rajasthan Services Rules; Rule 215 lays down conditions for grant of compensation pension. It provides that if a Government servant is selected for discharge owing to the abolition of his permanent post, he shall either be appointed to another post the conditions of which are similar or he will have the option of taking compensation pension or gratuity to which he may be entitled for the service that he has rendered. Then the other provisions of Chap. XIII in which Sections 215 to 226 occur, lay down other conditions for grant, of benefits to Government servant in the event of abolition of post and his discharge from service. Therefore, to my mind, the only choice left with a Government servant whose services were placed at the disposal of the Board in terms of order Ex. A was either to continue in service with the Board on terms that the Board might offer or on his old terms or to go home and to ask for post-retirement benefits from the Government. It is idle to contend that Government had undertaken the liability to provide such an employee on other post. Moreover, in the very nature of things it is difficult to conceive that the Government would be able to retain quite a large number of employees in the power houses on similar posts after the power-houses were transferred to the Board.
10. I may now deal with the significance of the words 'placing the services at the disposal of the Board temporarily.' I have already referred to the provisions of Section 141 of the Rajasthan Service Rules as they stood in the year 1958. The Government did not have the power to transfer its employees to foreign service against their will and, therefore, all that the Government could do was to leave it to the Board and the Government servants concerned to adjust their relationship, but so far as the Government themselves were concerned, they have clearly provided in Clause (2)(c) of the order that if Clause (a) or (h) of Clause (2) were not availed of by the employee, then he could only ask for post-retirement benefits from the Government as if the establishment or the post in which the employee was employed had been abolished.
11. Now the question arises as to how the matter could be taken to have stood after 18 February 1958. It was clearly laid down in Clause (2) of the order that the Board shall be required to permit each Government servant to exercise option. It was, therefore, the duty of the Board to have given this option to the employees concerned and if it did not do so for as many as almost ten long years, then it does not lie in its mouth to say that the employee is not its employee. By logic of events that had overtaken what was laid down in the order Ex. A, the parties concerned, namely, the Board and employees concerned will be taken to have established a relationship of masters and servants as between themselves by conduct. As to what will be the conditions of service will be a matter that will be examined a little later. I may here advert to the letter dated 26 August 1968 written by the Assistant Secretary to the Government, to the Secretary, Rajasthan State Electricity Board, Jaipur, saying that the employees still hold a lien under the Government. As I have already noticed, no Government order showing as to on what posts the lien of the petitioner has been kept was placed before me in spite of my asking for such information. The letter written by one respondent to another, even if one of the respondents is the Government during the pendency of the writ petition and after the query has been made by the Court itself on 22 August 1968, has no evidentiary value. The minimum that was expected from the side of the Government was to put in an affidavit of some responsible officer of the Government. That being so, I am unable to take notice of Ex. C as being of any help in the case. When a lien of an employee is kept, the Government either has a post ready for him to occupy, if such servant reverts after termination of the deputation, or the Government has a supernumerary post on which the lien of a Government servant is kept even if that particular post or establishment is abolished. This has precisely happened in the case of the transfers of employees though temporarily when the Rajasthan State Road Transport Corporation was constituted in place of the Rajasthan State Roadways Department which was run as a Government department undertaking. I ought to add that by the time the employees of the Roadways Department came to be transferred to the State Road Transport Corporation, Rule 141 of the Rajasthan Service Rules had been suitably amended so that the employees could be transferred even against their will. This is not so in the present case, as Rule 141, as I have already pointed out, was altogether in a different form and shape. That being so, I am unable to hold that the employees were on deputation and had not been absorbed in the service of the Rajasthan State Roadways. I am confirmed in this by the stand that the Board had taken in Mohanlal v. State and Ors. 1968-1 L.L.J. 248. In that case even when Mohanlal himself had taken a somewhat contradictory position, the Court came to the conclusion in his case that he was an employee of the Rajasthan State Electricity Board after the power-houses were transferred to the Board and when he was subsequently sent to the Public Works Department of the State, he was on deputation with the State Government in its Public Works Department. The notification Ex. A has been expressly cited in the case. The case went up to the Supreme Court at the instance of the Board and the judgment of the Court at the instance of the Board -Rajasthan State Electricity Board, Jaipur v. Mohanlal and Ors. 1968-I L.L.J. 257. Sm. Gupta, arguing for the Board, submitted that in that case the Rajasthan state Electricity Board had conceded under some misapprehension that Mohanlal had become its employee though in terms of the order Ex. A. 1 his services, like those of others, were only temporarily placed at the disposal of the Board on deputation. This time learned Counsel for the Board has brought in some more documents. They are in the nature of instances for showing that on disciplinary action being taken by the Board some of the employees approached the State Government saying that the Board had no jurisdiction to take disciplinary action against the employees as they were on deputation with the Board and belonged to State service. Sri Gupta urged that this stand was accepted by the Government who dealt with such employees on the footing that they were the State employees on deputation with the Board.
12. Having considered the several documents as also what was said on behalf of the Board in Mohanlal case 1968-I L.L.J. 267, (vide supra) I have no reason to take a view different from that taken in Mohanlal case 1968-I L.L.J. 267 (vide supra) regarding the status of these employees. This stand taken in Mohanlal case 1968-I L.L.J. 257 (vide supra) is quite in keeping with the tenor of Ex. a. 1 as also the Rajasthan Service Rules. If some of the officers of the Governments had taken a view to the contrary, that will not detract from the correct legal position that emerges from Ex. A. 1 read in the light of the provisions of the Rajasthan Service Rules. The most important provision to which I have invited attention is that it was not open to the State Government to transfer its employees to foreign employment against the will of the employees. Therefore, the Government had ordered that the services of such employees were only provisionally at the disposal of the Board and they were to be dealt with in the manner laid down by the order Ex. A. 1. The provision to the effect that on the employees not choosing to remain in the service of the Board the only course left to them was to go home and to ask for post retirement benefits as if the posts were abolished, leaves so doubt in my mind that the Government was not going to provide the employees with other posts in its services. I asked a clear statement from learned Counsel for the Stats, if the State is prepared to absorb quite a large number of employees in its service and naturally the learned Counsel for the State was not able to throw say light on it. The reason is obvious. With the transfer of power-houses it is not at all conceivable that the State would be able to provide identical employment to the thousands of employees, if they want to come back in the service of the Government. Therefore, it is quits reasonable to infer that the only course open to such employees who would not like to remain in the service of the Board was to go home and ask for post-retirement benefits to which they may be entitled in terms of Rules 215 to 236 of the Rajasthan Service Rules which rules have been expressly referred to in Ex. A. 1. I have, therefore, no reason to think that the petitioner had continued in the service of the State. If it is so, than in terms of an amendment of the Rajasthan Service Rules made in the year 1967, he cannot be retired. The order of retirement Ex. 1 is as follows:
RAJASTHAN STATE ELECTRICITY BOARD
NO. RSEB/C3/F.4 (7) 67/D. 1232/1893, Jaipur,
29 Jane 1967
Rajasthan State Electricity Board,
Shrikishan, head lineman II,
Rajasthan State Electricity Board
[Subject,-Retirement of non-gazetted staff who have attained the age of 65 years or more on 1 July 1967.] With reference to the Rajasthan Government. notification No. F. 1 (42) FD (Exp. Rules)/67-II, dated 13 June 1967. and order No. F. 1 (42) FD (Exp. Rules)/67-I, dated 13 Jane 1967, issued-vide Endorsement No. RSEB/A & F/D. 1324. dated 16 June 1967, the undersigned in exercise of the authority delegated to him by Rajasthan Government-vide letter No. F. 4 (95) Pow/67, dated 26 June 1967, from the Secretary to the Government, Power Department, Rajasthan, Jaipur, I have to inform you that you will attend retired from the services with effect from 1 July 1967 (forenoon), in accordance with the detailed instructions contained in the Government order and notification dated 13 June 1967 referred to above.
You will hand over your charge to Ragunath Singh, lineman, positively on 1 July 1967 (forenoon), under intimation to your immediate controlling authority.
(Sd.) K.C. Satsangi,
This order recites that it is with reference to the Rajasthan Government notification dated 13 Jane 1967 that the Chairman was retiring the petitioner and that too in pursuance of the authority delegated to him by the Rajasthan Government-vide its letter dated 28 June 1967. Once the conclusion is reached that the petitioner was no longer the employee of the State, then order Ex. 1 could not have been issued by the Chairman. Whatever he might be able to do treating the petitioner as the employee of the Board, he could cot have been retired in terms of the Government notification of 13 June 1967 by which the State employees ware retired.
13. I may now proceed to consider the other submission of learned Counsel regarding the age of superannuation of an employee of the Board. Learned counsel for the petitioner contended that in the year 1963 the Board had submitted draft standing orders for certification by the certifying officer and therein they suggested 55 years' age as that for superannuation of lta employees and this order regarding the age of superannuation was not certified by the certifying officer and consequently there was no standing order making provision for age of superannuation.
In view of this, learned Counsel for the petitioner maintained that there being no condition of service regarding the age of superannuation between the petitioner and the Board, the petitioner was entitled to be In service us long as be was physically and mentally fit for the job which he was doing. On the other hand, learned Counsel for the Board contended that the certifying officer, after considering the contention of both the parties, had ordered that the matter regarding the age of superannuation will be governed by past practice. Learned counsel for the Board, therefore, argued that on the basic of the past practice between the employees and the employer the provisions of the Rajasthan Service Rules will be attracted in the case. I may quote the relevant passage in the order of the certifying officer:
The objector-unions did not agree to age of retirement as provided in order No. 86. It, however, agreed to keep the retirement age at 60 years. The representative of the Rajasthan State Electricity Board was not prepared to agree to anything above 55 as it was an established practice according to the Rajasthan Service Rules. Accordingly, the order No. 36 is removed and the parties will be governed by convention or practice in force. Subject, however, that the unions have got a right of raising an industrial dispute on this issue any time, they so desire.
14. Sri Gupta contended that no appeal had been filed by the unions against this order of the certifying officer and, therefore, it has to be taken that so far as the age of superannuation of the employees was concerned it would be governed by past practice, as observed by the certifying officer, nor Section 5 of the Certification (Standing Orders) Act, under which the certifying officer certifies the draft standing orders inter alia provides that after giving the employer and the trade union or such other representatives of the workmen an opportunity of being heard the certifying officer shall decide whether or not any modification or Addition to the draft submitted by the employer is necessary. To render the draft certified under this Act he shall make an order in waiting accordingly. This section gives power to the certifying officer to certify the draft standing orders with or without modifications. It is none of his functions to suggest how the parties will govern their relationship outside the ambit of the standing orders that he has certified. In those circumstance, the observations of the certifying officer that the position between the parties will be governed by past practice is of no importance. The question, therefore, arises as to what is the position between the parties so far as the age of superannuation is concerned. The age of superannuation in an industrial undertaking is generally provided in the standing orders and where that is tasking, as in the present case, the same in governed by the contract of service, If any, between the parties. In the present case, I am not called upon to ascertain as to what the contract between the parties, if any, was about the age of superannuation. This will take me to question of fact and for coming to a correct conclusion evidence may have to be gone into. So far as the present case stands, order Ex. 1, which has been challenged before me, proceeds on the footing that the petitioner is a Government employee and is governed by the amendment of the Rajasthan Service Rules made in June 1987 and was consequently liable to retire on 1. July 1967, I leave it to the Board to take a decision about the petitioner according to what terms and conditions it may consider to exist between it and the petitioner. Order Ex. 1 however, cannot stand as it proceeds on a foundation which is altogether misconceived.
15. In the result, I allow this writ petition with costs and quash the impugned order Ex. 1 on record and direct that the respondents shall not give effect to it qua the petitioner.