C. M. LODHA, C. J. - (1.) THIS is a special appeal under Sec. 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 apppellant-petitioner.
(2.) THE appellant is a clerk in the United Commercial Bank, Bhopalgarh 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 and interview. A memorandum of agreement regarding the policy on the procedure concerning promotion and selection was entered into between the respondent Bank and the workmen through their unions and in the said agreement it was provided that in allocation of marks for the written test, interview, length 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 and 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 holding "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 therefore, prayed that the respondent - Bank may be directed to allot three marks to the appellant for the Post Graduate Diploma held by him 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 penal of persons eligible for appointment to the Officers' Cadre. The Writ petition was opposed by the Bank which raised a prelimi-nary objection that the Bank does not fall within the ambit 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 Holier nor a Double Graduate. The learned Judge did not deal with the preliminary 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 preliminary objection before us and therefore we consider if necessary to deal with it at the very outset. It is urged that the respodent - 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 Art. 14 nor Art. 16 of the Constitution can be pressed into service against it. For a proper appreciation of the preliminary 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 " 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 Bank. In support of his contention he has placed reliance on: Sukhdev Ratilal vs. The Chairman (Gujarat) (1), Lachhman Dass vs. Punjab National Bank (2), United Commercial Bank vs. V. J. Vyas (3), State Bank of India vs. Kalpaka Transport Co. (4), V. Ramiah vs. State Bank of India (5), and Ramana vs. The International Authority of India (6 ). On the other hand, Mr. Maghraj Calla has placed strong reliance on certain observations made in Sabhajit Tewari vs. Union of India (7 ). In Sabhajit Tewari vs. Union of India (7) 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 in accordance with the provisions of the Societies Registration Act. It was further pointed out that the Prime Minister is 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 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. 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 Companies 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 as 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 consultation with the Reserve Rank, 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. In Electricity Board, Rajasthan vs. Mohanlal (8) their Lordships reproduced the following passage with approval from Smt. Ujjam Bai vs. State of Uttar Pradesh (9): - "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 Govern-ment 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. "
(3.) 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 and others fa!l within the definition of "state" in Article 12 and consti-tutional 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 made by the learned Judge in disagreement with the majority opinion expressed by Bhargava J. , on behalf of Subha Rao, C. J. J. M Shelat. and C. 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 vs. The Chairman (Gujarat) (1), Lachhman Dass vs. Punjab National Bank (2) and United Commercial Bank vs. V. J. Vyas (3 ). We may also refer to the latest case of the Supreme Court on this point, reported as Raraana vs. I. A. Authority of India (6) wherein a clear distinction has been drawn between a corporation established by 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 Judg-ment their Lordships summerised the factors for determining whether a corpora-tion 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 magni-tude of such assistance, whether there is any control of the management and policies of the Corporation by the State, whether the Corporation enjoys State-conferred or State protected monopoly status and whether the functions carried out by the Corporation are public function, closely related to governmental functions. It is sufficient to point out that after applying the illustrative tests laid down by their Lordships in Ramana vs. I. A. Authority of India (6), 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. Coming to the merits of the case, the short point is wether "dcwa" can be considered as graduation or a post-graduate diploma? The learned Judge has held that it was not a Post Graduate Diploma. In coming to this conclusion he placed reliance on the following observations made by the Supreme Court in Juthika vs. State of Madhya Pradesh (10): "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 comple-tion of a course of studies at a higher level in any speciality, 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 "postnuptial", "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 the LL. B. 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 Master's degree like the M. Ed. , or the LL. M. , who earns recognition as the holder of a post-graduate degree. " 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. ' 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 hold examinations and grant and confer degrees and other academic distinctions. A separate clause has been provided under this very section C1. (4) regarding grant of "diploma". Similarly, under Statute 7 (vi) it is provided that the Academic Council shall have the powers to recognise 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. ;