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Kashi Vishwanath Vs. United Commercial Bank - Court Judgment

LegalCrystal Citation
SubjectBanking;Company
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 5 of 1979
Judge
Reported in1979WLN709
AppellantKashi Vishwanath
RespondentUnited Commercial Bank
DispositionAppeal dismissed
Cases ReferredJuthika v. The State of Madhya Pradesh and Ors. A.I.R.
Excerpt:
.....and 'degree' explained--dcwa cannot be quoted with graduation--appellant cannot be considered as post graduate diploma holder of master's degree or double graduate.;throughout in the hand-book 'diploma' and 'degree' have been separately dealt end one has not been identified with the other.;the 'dcwa' cannot be equated with graduation, and, therefore, the appellant, even though a graduate in commerce cannot be treated as a double graduate by qualifying himself as 'dcwa'.;the appellant cannot be considered as a post graduate diploma holder for the simple reason that the basic qualification prescribed for 'dcwa' is not graduation. even a nongrraduate is eligible for 'dcwa' only with the difference that he has to pass all the three parts where as a graduate in commerce is exempted from..........case, the short point is whether 'dcwa' can be considered as graduation or a post-graduate in or a postgraduate diploma? the learn d judge has held that it was not a post-graduate diploma. in coming to this conclusion he placed reliance on the following observation made by the supreme court in juthika v. the state of madhya pradesh and ors. a.i.r. 1976 s.c. 2534:by 'post-graduate' is meant a master's degree like the m.a. or m.sc., b.t. in other words, the expression connotes the successful, completion of a course of studies at a higher level in any specialty after the acquisition of a basic qualification at the graduate level. the b.t. course of studies, we are informed, is open only to graduates and, in a dictionary manner of speaking, the degree of 'bachelor of teaching' may be said to.....
Judgment:

C.M. Lodha, C.J.

1. This is a special appeal under Section 18 of the Rajasthan High Court Ordinance from the judgment of the learned Single Judge dated December 1, 1978 in S.B. Civil Writ Petition No. 439 of 1978, whereby the learned Judge dismissed the writ petition filed by the appellant-petitioner.

2. The appellant is a clerk in the United Commercial Bank, Bhopal Garh Branch, Jodhpur District. He was eligible for promotion to the higher post as Officer Grade 'D' on being selected after qualifying in a written test aid interview. A memorandum of agreement regarding the policy and the procedure concerning promotion and selection was entered into, between the respondent Back and the workmen through their unions and in the said agreement it was provided that in allocation of marks for the written test, interview, lengh of service and qualifications three marks would be given for Double Graduation or Master's Degree from a recognised University or a post graduate diploma of a recognised University or Institute. The appellant holds a diploma in Costs & Works Accountancy (which for the sake of shortness is called 'DCWA') of the University of Jodhpur. The appellant's case is that the said diploma is a Post Graduate Diploma and that he was entitled to get credit of three marks for hold in 'DCWA' and consequently if three marks had been given to him on that account he would have been selected for promotion in 1975 and would have thereby qualified for interview held in 1976, but no such credit for three marks had been given to him. He, there-fore, prayed that the respondent-Bank may be directed to allot three marks to the appellant for the Post Graduate Diploma held or in the alternative on account of his being a double graduate and a further direction may also be issued to include the appellant's name in the panel of persons eligible for appointment to the Officers Cadre.

3. The writ petition was opposed by the Bank which raised a preliminary objection that the Bank does not fall within the admit of the term 'State' used in Article 12 of the Constitution, and, therefore, no writ can lie against it for enforcement of statutory obligation. Besides that, it was pleaded on merits that 'DCWA' is neither a post Graduate Diploma nor it is Graduation, and, therefore, the appellant can neither be treated as a post Graduate Diploma Holder nor a Double Graduate.

4. The learned Judge did not deal with the perliminary objection presumably because he did not accept the contention raised on behalf of the appellant on merits of the case. However, Mr. Magh Raj Calla, learned Counsel for the Bank, has reiterated the perliminary objection before us and therefore we consider it necessary to deal with it at the very outset. It is urged that the respondent Bank is not a State as it has neither been created by a Statute nor can it be said to be under the control of the Government of India, and, therefore, neither Article 14 nor Article 16 of the Constitution can be pressed into service against it.

5. For a proper appreciation of the perliminary objection, we may refer to the definition of the term 'the State' contained in Article 12 of the Constitution. It reads as under:

12. Definition : In this Part, unless the context otherwise requires, 'the State' includes the Government and 'Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

6. Mr. Mathur, learned Counsel for the appellant, has urged that the respondent Bank is an authority created by the Statute and is under the control of the Government of India and is consequently the State. It is submitted that it is a nationalised Rank. In support of his contention he has placed reliance on : Sukhdev Ratilal v. The Chairman (Gujarat) A.I.R. 1976 (2) S.L.R. 144, Lachhman Dass v. Punjab National Bank 1977 (2) S.L.R. 565, United Commercial Bank v. V.J. Vyas 1977 L & I.C. 1013. State Bank of India v. Kolpaka Transport Co. A.I.R. 1979 Bom. 250, Ramiah v. State Bank of India A.I.R. 1964 Mad. 335, and Ramana v. The International Authority of India A.I.R. 1979 S.C. 1628. On the other hand, Mr. Maghraj Cala has placed strong reliance on certain observations made in Sabhajit Tewary v. Union of India A.I.R. 1975 S.C. 1329.

7. In Sabhajit Tewary v. Union of India A.I.R. 1975 S.C. 1329 it was held that the Council of Scientific and Industrial Research does not have a statutory character like the Oil and Natural Gas Commission or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated accordance with the provisions of the Societies Registration Act. It was further pointed out that the Prime Minister on the President or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of the scientific and industrial research and other activities of the Council towards the development of industries in the country, are carried out in a responsible manner.

8. Now it may be pointed out that so far as the present case is concerned, the respondent Bank is not incorporated under the provisions of the Banking Compares Act or any other Act. On the other, hand, by virtue of Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, on the commencement of the said Act the respondent Bank is a new Bank specified in the First Schedule appended to the Act (See Section 3(1), and item 5 of the First Schedule). We are unable to accept the contention raised by Mr. Calla that the respondent Bank continued to be a Bank under the Banking Companies Act. In our opinion, a new Bank was created by the said Act. Reference may be made to Section 4, which provides that the undertaking of every existing bank shall be transferred to, and shall vest in the corresponding new bank. Section 9 further provides that the Central Government may, after conslutation with the Reserve Bank, make a scheme for carrying out the provisions of this Act. We are, therefore, satisfied that the respondent-Bank has been created by the said Act. In this view of the matter, it must be held that the respondent Bank is a corporation created by a Statute. On a perusal of the various provisions of the Act, particularly Section 9, as referred to above, it is further clear that the respondent Bank is under the control of the Government of India.

9. In Electricity Board, Rajasthan v. Mohanlal A.I.R. 1967 S.C. 1857 their Lordship reproduced the following passage with approval from Smt. Ujjam Bai v. State of Uttar Pradesh A.I.R. 1962 S.C. 1621:

Again Article 12 winds up the list of authorities falling within the definition by referring to order '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 this '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.

10. Learned Counsel for the respondent laid great emphasis on the observations made by Shah J., as he then was in that case. It is true that Shah J., went to the length of observing that the authorities constitutional or statutory invested with power by law not sharing the sovereign power do not fall within the expression 'State' as defined in Article 12 and 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 & others, fall within the definition of 'State' in Article 12 and constitutional or statutory bodies which do not share that sovereign power of the State are not 'State' within the meaning of Article 12 of the Constitution. It is sufficient to point out that these observations were by the learned Judge in disagreement with the majority opinion expressed by Bhargava J., on behalf of Subba Rao, C.J., J.M. Shelat, and G.K. Mitter JJ., and, therefore, it is only the view expressed by the majority that must be considered as the law of the land. Consequently, we do not wish to labour with this point further. However, there are direct authorities on the point that a nationalised Bank is 'the State' within the meaning of the term used in Article 12 of the Constitution Reference in this connection may be made to Sukhdev Ratilal v. The Chairman (Gujarat) A.I.R. 1976 (2) S.L.R. 144, Lachhman Dass v. Punjab National Bank 1977 (2) S.L.R. 565 and United Commercial Bank v. V.J. Vyas 1977 L & I.C. 1013. We may also refer to the latest case of the Supreme Court on the' point, reported as Ramana v. I.A. Authority of India A.I.R. 1979 S.C. 1628, wherein a clear distinction has been drawn between a corporation established by the Statute and a corporation incorporated under the law, such as the Companies Act, 1956 or the Societies Registration Act, 1860. In para 19 of the judgment their Lordships summarised the factors for determining whether a corporation is an agency or instrumentality of Government, and they are whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance, whether there is any control of the management and policies of the corporation by the State, whether the Corporation enjoys State, whether the Corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the Corporation are public functions, closely related to governmental functions It is sufficient to point out that after applying the illustrative tests laid down by their Lordships in Ramana v. I.A. Authority of India A.I.R. 1979 S.C. 1628 we are of the opinion that the respondent Bank which is a nationalised Bank under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 is a State, In this view of the matter, we over-rule the preliminary objection.

11. Coming to the merits of the case, the short point is whether 'DCWA' can be considered as graduation or a post-graduate in or a postgraduate diploma? The learn d Judge has held that it was not a Post-Graduate Diploma. In coming to this conclusion he placed reliance on the following observation made by the Supreme Court in Juthika v. The State of Madhya Pradesh and Ors. A.I.R. 1976 S.C. 2534:

By 'post-graduate' is meant a Master's degree like the M.A. or M.Sc., B.T. In other words, the expression connotes the successful, completion of a course of studies at a higher level in any specialty after the acquisition of a basic qualification at the graduate level. The B.T. course of studies, we are informed, is open only to graduates and, in a dictionary manner of speaking, the degree of 'Bachelor of Teaching' may be said to be a 'post' graduate degree in the sense that the degree is obtainable only 'after' graduation. That is the sense in which the word 'post' is used in expressions like ' post-nuptial', 'post-prandial', post-operative', 'post-mortem' and so forth. In these expressions, 'post' means simply 'after' the emphasis being on the happening of an event after a certain point of time. But the expression 'post-graduate degree' has acquired in the educational world a special significance, a technical content. A Bachelor's degree like the B.T. or L.LB. is not considered to be a post-graduate degree even though those degrees can be taken only after graduation In the refined and elegant world of education, it is the holder of a Mister's degree like the M.Ed. or the L.L.M. who earns recognition as the holder of a post-graduate degree.

12. Mr. Mathur, learned Counsel for the appellant did not challenge this finding of the learned Judge, but submitted that 'DCWA' is a graduation In support of his submission he has relied upon the dictionary meaning of the words 'diploma' and 'graduate' He has referred us to the definitions of the said terms in Webster's Third New International Dictionary, Vol. I. The word 'diploma' has been defined, inter alia, as a document bearing record of graduation from or of a degree conferred by an educational institution, and the word 'graduate,' has been defined to mean one that has received an academic degree, a diploma, or a certificate.

13. On the other hand on a perusal of the Hand-Book of the University of Jodhpur, we find that a clear demarcation has been made between the two words : 'degree' and 'diploma'. In Section 44 of the Jodhpur University Act, 1962 it has been mentioned that the University shall hid examination and grant and confer degrees and other academic distinctions A separate clause has been provided under this very section Clause (4) regarding grant of 'diploma' Similarly, under Statute 7(vi) it is provided that the Academic Council shall have the powers to reconise diplomas and degrees of other University and Institutions. Again in Statute 9 it is provided that the Faculties shall perform the functions to recommend to the Academic Council conditions for the award of degrees, diplomas and other academic distinctions It is not necessary to multiply such provisions, but it is sufficient to point that (throughout in the Hand-Book 'diploma' and 'degree' have been separately dealt and one has not been identified with the other.)

14. More over in order to understand the correct import of the word 'diploma' it would nit be proper to be guided by dictionary meaning alone. It would be necessary to and out the sense in which the expression is used in the Hind-Book of the University. It would not be out of place, here, to bear in mind the local parlance and understanding of the two terms of 'diploma' and 'degree'. In common parlance a person is said to have become a graduate only when he has obtained a Bachelor's degree, be it in Arts, Science, Commerce, Law, Engineering and Teaching etc., whereas a person who has obtained diploma is only called a diploma-holder, and not a graduate. It is true that in the case of 'DCWR', for a graduate in commerce the course is for two years, though the minimum qualification for admission to 'DCWA' Part I is passing of an Intermediate or its equivalent examination but in that case the candidate has to clear three parts. However, for the reason that a graduate in Commerce is exempt from Part I of the course, it cannot be said that what is in fact a 'diploma' must be deemed to be a 'decree'. All that can be said is that exemption has been granted to a graduate in commerce Part I of the course.

15. Having regard to the scheme of various courses in which examinations are conducted by the University of Jodhpur and also to the local parlance and understanding in which the two terms are used, we have come to the conclusion that the 'DOWA', cannot be equated with graduation, and, therefore, the appellant even though a graduate in commerce cannot be treated as a double graduate by qualifying himself as 'DCWA'.

16. We have examined the matter from the stand point of Post Graduate Diploma also, and are of the opinion that the appellant cannot be considered as a Post Graduate Diploma Holder for the simple reason that the basic qualification prescribed for 'DCWA' is not graduation. Even a non-graduate is eligible for 'DCWA' only with the difference that he has to pass all the three parts whereas a graduate in commerce is exempted from Part I. Thus the appellant cannot come within the definition of any of the three terms, viz. 'Double Graduate', or Holder of Master's Degree or holder of a Post Graduate Diploma. In this view of the matter, we are unable to grant any relief to the appellant.

17. This appeal, therefore, fails and is hereby dismissed, but there will be no order as to costs.


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