Jagat Narayan, C.J.
1. These are two special appeals under Section 18 of the Rajasthan High Court Ordinance, one by the State of Rajasthan and the other by the Rajasthan State Electricity Board, Jaipur (hereinafter to be referred to as the Board) against the order of a learned Singe Judge of this Court dated 17th October, 1968, quashing the order Ex. 1 dated 29th June, 1967, of the Chairman of the Board, retiring the respondent Shri Shrikishan from service and further directing the respondent State Government and the Board not to give effect to the order qua the petitioner Shri Shrikishan. Both these appeals shall be disposed of by this common order.
2. The relevant facts may be briefly stated as follows. The respondents Shri Shrikishan is a resident of Kishangarh and was born on 1-7-1910. He joined Government Service in the erstwhile State of Kishangarh as a wireman in the State Power House. With the formation of Rajasthan, the respondent became the employee of the State of Rajasthan. Be was a Head line-man with effect from 1-4-1950. Sometime in the year 1957, (on 28-6-1957) the Rajasthan State Electricity Board was constituted, in persuance of the relevant provisions of the Electricity Supplies Act, 1948 (hereinafter to be referred to as the Act). After the formation of the Board the State Government issued directions under Section 78A of the Act vide order Ex. A dated 12th February, 1958, placing the services of the employees of the Electrical and Mechanical Department excluding the Electrical Inspectorate of the State at the disposal of the Board. This order indicated the manner of regulation of the service conditions as follows:
(1) The services of the Government employees of the Electrical and Mechanical Department both permanent and temporary shall be provisionally placed at the disposal of the Rajasthan Electricity Board with effect from 1st July, 1957.
(2) Tee Board shall be required to permit each Govt. 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 Govt. service by claiming pension or gratuity as may be admissible on abolition of posts under the Rajasthan Service Rules (Rules 215 to 226)
(3) In case of permanent Govt. servants of the Electrical and Mechanical Department opting to continue in the service of the Board subject to these existing conditions, the grant of pention is granted by the Govt. subject to an arrangement to be made with the Board.
(4) The Govt. servants are to be permitted to avail themselves of leave earned under the Govt. after their transfer to the Board to draw the salary therefor, in accordance with an arrangement to be made with the Board.
It does not appear from the record whether the Board took any action to create new grads or service conditions but it is a common ground that there arose no occasion for the employees provisionally transferred to exercise any option provided in Clause (2) of the order Ex. A. It may be incidentally mentioned that sometime in the year 1963 the Board prepared the draft standing orders for laying down the conditions of the service of the employees providing the age of superannuation of its employees at '55' and submitted them before the certifying officer in accordance with the Standing Orders Act, 1946. The Union of the workers opposed the certification of the standing order proposed by the Board and suggested the fixation of the age of superannuation at '60' and not '55'. The Certification Officer did not certify the older about the age of superannuation and we are told that the age of superannuation was left to be determined by the past practice. On 13th June, 1967, the Government of Rajasthan issued orders bearing No. F. (42) FD (Exp-Rules) 67-1 amending Rule 56 of the Rajasthan Service Rules (hereinafter to be referred to as the Service Rules) and substituting '55' years as the age of tuperannuation in place of '58' years. The said order was endorsed to the Chairman of the Board. In pursuance of that order, on 29th June, 1967, Chairman of the Board, issued the order Ex. 1 retiring the respondent Shri Shrikishan from service. Aggrieved by this order, the respondent Shri Shrikishan submitted writ petition in this Court on the following grounds:
1. That he was not employee of the State and could not have been retired in terms of Government Notification dated 13-6-1967 by which the State employees were retired. Consequently, the order Ex 1 could not be issued.
2. The respondent Shri Shrikishan also referred to the absence of the certification of the standing order in relation to superannuation age and contended that in the absence of a standing order duly certified he could not have been retired by the Board.
3. The writ was opposed by the appellants. The reply of the Board was that the services of the respondent like other employees of the Power Houses were provisionally placed at the disposal of the Board and that he was only on deputation with the Board and never came to be absorbed in the service of the Board and that he could be retired on reaching the age of 55 years in terms of Service Rules as amended in June, 1967. It was also urged that even after the transfer of the Power Houses by the State Government to to the Board, the State Government continued to exercise disciplinary control over employees whose service was placed at the disposal of the Board. In the reply as also by means of a separate application the Board also contended the Court should not exercise its extra-ordinary jurisdiction having regard to a serious dispute on a question of fact between the parties viz. whether the petitioner was or was not an employee of the State. The State filed a separate reply more or less on the same lines.
4. The writ came up before a learned Single Judge in the first instance on 22-8-1968. On that day the counsel for the Board submitted that he had documentary evidence to produce for showing that the respondent Shri Shri Kishan continued to be a Government servant inspire of his service having been placed at the disposal of the Board in terms of order Ex. A. The Court then expressed the opinion that the decisive thing for seeing whether the respondent Shri Shrikishan continued in Government service or not will be to find out whether his lien was kept with the Government or whether any permanent post was kept for him on which his lien was suspended. He, therfore, directed the counsel for the Board to gather information about the lien of Shri Shrikishan with the Government in the first instance and directed that the question whether a further opportunity should be given to the counsel for the Board to adduce evidence in the shape of other documents for establishing the continuance of the respondent in the service at a later date. The Board subsequently on 28-8-1968 produced a copy of letter No. F. 4(95) Pow/67 dated 26th August, 1968 written by the Assistant Secretary to the Government (Power Department) and addressed to the Secretary, Rajasthan State Electricity Board, Jaipur, stating 'their services have not been transferred to the Board and they still hold a lien under the Government'. The principal question was formulated by the learned Judge as follows:
Whether the petitioner (respondent here) 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 13-6-1967 in terms of Rule 56 of the Rajasthan Service Rules,1951,as they stood amended on 13-6-1967?
In answering the question, the learned Judge, examined the language of the order Ex. A of 1958 in the light of the Service Rules, particularly Rule 18 relating to the lien of Government servants and 111 relating to the deputation of Government servants to foreign employments, and recorded the following conclusions:
(1) 'Therefore, to my mind, the only choice left with a Government servant whose services were placed at the disposat 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.
(2) Emphasing that it was the duty of the Board to have given this option to the employees concerned and its omission for 10 long years, he observed that 'that does not lie in its mouth to say that the employee is not its employee. By logic of events that had over taken what was laid down in the order Ex. A, the parties concerned namely, the Board and the employees concerned will be taken to have established a relationship of master and servants as between themselves by conduct.
(3) Referring to letter dated 26-8-1968 (Ex. C) the learned single Judge observed:
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 22-8-1968 has no evidentiary value.(4) The learned single Judge also relied upon the stand taken by the Board in Mohanlal v. State holding that Mohanlal a similar employee was treated as an employee of the Rajasthan State' Electricity Board after the Power Houses were transferred to the Board. The learned Judge further pointed out that the case went up to the Supreme Court at the instance of the Electricity Board Rajasthdn v. Mohan Lal : (1968)ILLJ257SC , and the judgment of the Court was affirmed vide order 3-4-1967.
Reaching the conclusion that the respondent was no longer the employee of the State, the learned Single Judge held that the order Ex. 1 could not have been issued by the Chairman of the Board. The learned Single Judge consequently allowed the writ petition with costs and quashed the order Ex. 1 The State Government and the Rajasthan State Electricity Board have filed the present appeals.
5. At the out set, we think it proper to emphasise the following facts which hardly admit of any controversy .
(1) That by Government's order dated 12th February, 1958 (Ex. A) their services were only provisionally placed at the disposal of the Board. There is no subsequent order of the Government either terminating their services or otherwise indicating that they ceased to be Government employees.
(2) That there was no exercise of any option in terms of Clause (2) of Ex. A by the respondent Shri Shrikishan and there is no order of the Board appointing or absorbing the respondent as permanent employee of the Board.
6. We consider it proper to point out at this stage that we have not been able to understand how the order Ex. A imposed a duty on the Board to have given option to the State employees whose services were provisionally placed at the disposal of the Board. There are also no materials on record whether the Board created new grades or conditions of service and whether there arose any occasion for the exercise of option in terms of Clause 2(b) of Ex. A. We consider, there was no adequate justification for the basic assumption made by the learned single Judge in this behalf. Prima facie, these facts lead to an inference that the respondent, like other employees, continued to be in service of the Board. The learned Judge, however, relied upon Rules 18 and 141 of the Service Rules and reached a contrary conclusion. The question before us is whether on a proper and reasonable interpretation and construction of these rules, the conclusion reached by the learned single Judge is sustainable?
7. Rule 18 of the Service Rules provides 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.' The rule is intended to safe-guard the rights of the Government servant and to impose a corresponding duty upon the Government and it cannot be reasonably interpreted to imply not only loss of lien and further a termination of the services of the State employees simply because the Government, while provisionally transfering the respondent mentioned no specific permanent post on which his lien could be retained. A rule creating a very valuable right in favour of the employees cannot be permitted to be avalable to laid to the serious consequences of loss of service on the basis of actual or presumed contravention of the rule by the State. The rule on the other hand, should and does enable a State employee to compel the Government to take appropriate steps for the retention of his lien including the creation of a supernumary post. A contrary view contended for by the respondent and relied upon by the learned single Judge will lead to a serious invasion on the rights of the Government servants and cannot be reasonably countenanced. Having regard to the language of the rule and the materials on record, we are unable to agree with the learned single Judge that the right of the respondent in respect of his lien in Government service was extinguished and that the respondent lost his service also. In our opinion, the learned single Judge was hardly justified in being influenced by reference to Rule 18 interpreting the impugned order Ex. 1.
8. Rule 141 of the Service Rules as it stood in 1958, prohibited transfer of Government servant to foreign service without his consent. It, however, does not state expressly or by necessary implication that the transfer by the Government in disregard to the rule is bound to have the effect of terminating the services of the Government servant On the basis of the rule the Government servant could object to the transfer and insist upon his right to remain with the Government and the Government will be bound to allow the objection and to cancel the transfer. It may be that the Government may not have any job on which to retain the employee in consequenc of abolition of post and may have no alternative but to terminate the services of the employee after giving necessary benefits under Rules 215 to 226 of the Rules. But it cannot be assumed in the absence of express or implied orders of the Government or proper materials that the Government by effecting transfer terminated or intended to terminate the services of its employees. It must be emphasised that there is nothing on record to show that the respondent, in any way, objected to the transfer. On the other hand, he acquiesed in the order of transfer and consequently, there arose no question for the termination of the respondent's service. The learned Judge thought that as the Government servant had no real option to object to the transfer on account of the liability of the termination of his services as provided in clause 'c' of Ex. A, the transfer should be treated as compulsory without the consent of the respondent and other employees and that it had the effect of termination of the employment of the respondent with the Government and his consequent absorption by the Board. We find it difficult to accept this conclusion. To us, the position appears to be as follows. In the year 1958 after the creation or the Board the Rajasthan Government was anxious about the services of the persons in the Mechanical and Electrical Department. The Government, therefore, placed their services provisionally at the disposal of the Board evidently retaining them in the State Service. The Government contemplated that the Board may create new grades and new conditions of service and, therefore gave option to the employees to accept new grades and service conditions or be absorbed in the service of the State on old terms. Of course, Clause 'G' of para 2 of Ex. A, did provide that in case of a Gevernment servant refusing to accept the transfer and to serve under the Board he could claim relief from the Government by claiming pension or gratuity, as may be admissible on abolition of the posts under the Rajasthan Service Rules (Rules 215 to 226). This option given to the Government servant by itself cannot imply termination of Government service. It may be that the Government servants might not have objected to the transfer in view of the likelihood of their services being terminated under clause 'c' of Ex. A. To say this, however, can not imply that the transfer of the respondent was necessarily without his consent and that it resulted in the termination of the respondent's services in the Government and his absorption by the Board. The counsel for the respondent vehemently contended that the order Ex. A in view of Clause 'c' should be interpreted to imply the impossibility of the employees to remain in service with the State and the absorption of the employees in the service of the Board that they had given simply an option to accept new grades and conditions if and when created by the Board or to remain in service with the Board, on conditions of service, as were in force under the State. We regret, we cannot accept this interpretation. In the instant case the order clearly states for the provisional transfer of their services. It further guarantees pension. Clause 2-G meant an option to their employees to either accept the provisional transfer while continuing in State service or to accept termination of service on the basis of abolition of post with necessary benefits. It may imply a temporary inability on part of the State to retain the employees with jobs under it but not in inability to retain them in service or to provide work and jobs to them in future. On a proper interpretation of Ex 1, we are of opinion that the Government servants had option to get themselves absorbed in the service of the Board by accepting new grades and service conditions, if any, created by the Board or to continue in the service of the Government on the old service conditions. Differing from the learned single Judge we reject the contention of the respondent' counsel.
9. We may mention here that Rule 141, Rajasthan Service Rule was amended in 1960 by F.D. Order No. F. 7(A) (31) F.D. A/Rules/60 dated dated 12-8-1960. The amended rule runs as follows:
141. No Government servant may be transferred to foreign service against his will provided that this rule shall not apply to the transfer of a Government servant to the services of a body incorporated or not, which is wholly or substantially owned or controlled by the Government to service paid from a Panchayat Samiti/Zila Parishad Fund constituted under the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Act No 37 of 1959).
10. The Rajasthan State Electricity Board is substantially controlled by the Government and under the amended rule, Government became empowered to transfer the services of the respondent to the State Electricity Board on deputation without his consent on 12-8-1960. This amendment regularised the deputation of the respondent even if his implied consent is not inferred.
11. Further, the impugned order provides for the reversion of the employees to the service of the State before retiring them. A supernumary post is created for each employee on which he reverts and from which he retired.
12. Rule 17(b) of the Rajasthan Service Rules provides that Government may suspend the lien of a Government servant on a post which he holds substantively if he is transferred to foreign service and Rule 17(f) provides for the revival of the lien on his reversion to service under the State. The lien of all Government servants whose services were transferred to the State Electricity Board should have been suspended under the above rule. The failure to do so cannot have the result of terminating their services under the State. Their lien was neither terminated nor suspended expressly. In these circumstances, it can only be deemed to have been suspended. For that was the correct order which should have been passed. It will thus be seen that there is no reason to treat the respondent as being otherwise than on deputation I with the State Electricity Board;
13. The learned singla Judge, relied upon the case of Mohanlal v. State and others in support of his conclusion that the respondent should be treated as an employee of the Board. It is true that Mohanlal was mentioned as an employee of the Board in the above judgment which was also upheld by the Supreme Court. In our opinion, the respondent cannot derive much help from this case. Mohanlal was an employee of the Mechanical Department and his services were provisionally placed at the disposal of the Board. In 1960 he was deputed as Assistant Engineer, Electrical, in the Public Works Department (Buildings and Roads) by order of the Government dated 27th January, 1930 Subsequently by another order of the Government dated 24th November, 1962 he was transferred back to the Board. It appears that during the period he was on deputation in the Public Wors Department there were a number of persons who were junior to him in the preexisting Electrical and Mechanical Department and like him who were serving in the Electricity Board, had been appointed to higher posts in disregard to his seniority. He filed a writ petition to challenge the promotion of his juniors and to enforce his seniority. The writ petition was allowed. The facts of his provisional' transfer of services to the Board and his subsequent transfer to the Public Works Department of the State and further retransfer to the Board point out that he was being treated as a State employee. There was no controversy in that case whether he should be treated as a permanent employee of the Board or of the State. In fact, the observations of his being an employee of the Board appear to have been made on admissions, there being no controversy or issue. Such observations being casual cannot be binding while deciding the present case.
14. In the light of the foregoing discussion, we have no alternative but to come to the conclusion in disagreement with the learned single Judge, that the respondent having continued in Government service was validly retired by the Chairman of the Board in terms of Government Notification dated 13th June, 1967, and the learned Judge was not justified in quashing the order of the Chairman. In this view of the matter it is hardly necessary to consider the controversy in relation to the standing orders.
15. The appeals are allowed. The decision of the learded single Judge is set aside. Parties to bear their own costs.