S.P. Agarwal vs Lt. Governor
1997 Latest Caselaw 1027 Del

JUDGMENT

Usha Mehra, J.

(1) Very interesting points have been raised in this writ petition, namely, (1) whether on account of Section 511-B(2)(i) of D.M.C.Act, on the issuing of notification dated 24th February,1997 the petitioner who was working as Additional General Manager automatically acquired the status of Member, Delhi Vidyut Board (In short the Board); (2) whether on account of the notification dated 24th February,1997 issued under Section 5 of the Electricity (Supply) Act,1948 (hereinafter called the Act) the post of Additional General Manager in fact was re-designated as Member Board; (3) whether the right which accrued to the petitioner on account of the notification dated 24th February,1997 could not be taken away retrospectively by a subsequent notification of 27th February,1997; (4) whether after redesignation of the post as Member Board there does not exist any post of AGM; (5) whether in the absence of any specific letter of appointment issued in favour of the petitioner he cannot claim the post of Member Board; and finally (6) whether the petitioner in this writ petition has claimed declaration or mandamus for appointment to the post of Member Board which is not permissible.

(2) In order to answer these questions let us have quick glance to the relevant facts and rules necessary for the determination of the same. The petitioner was Chief Engineer in the erstwhile Delhi Electric Supply Undertaking (in short DESU). He was due for promotion to the post of Additional General Manager (Technical) (in short the AGM). The said promotion was withheld. Aggrieved by that order the petitioner approached this Court by way of writ petition bearing CW.No.4349/95. This Court vide order dated 29th June,1995 held that denial of promotion to petitioner was based on extraneous and malafide considerations, and therefore, the order of withholding the promotion of Desu was quashed. That writ petition was allowed. Thereafter the petitioner was promoted to the post of Agm (Technical) vide order dated 19th September,1996 effective from 1st July,1995. He was posted as AGM(T-G). After petitioner's promotion the work was distributed between the two Agm (Technical) i.e. between the petitioner and Mr.Y.P.Singh another Agm (Technical). The petitioner was given the charge of generation, products including new works planning & consideration and other civil works. Rest of the charge was given to Mr.Y.P.Singh. This division took place vide order dated 20th October,1996. The Government reconstituted the Desu into a State Electricity Board. The powers under the Electricity (Supply) Act,1948 and the Indian Electricity Act,1910 were delegated to the Lt.Governor of Delhi by notification dated 29th January,1997 of the Government of India. The Act was made applicable to the National Capital Territory of Delhi (in short N.C.T. of Delhi) from 24th February,1997 by a notification of the same date. The Lt.Governor in exercise of the powers vested in him under Section 5 of the Act issued a notification on 24th February,1997 constituting the Electricity Board for the N.C.T. of Delhi under the name of Delhi Vidyut Board. Clause 2 of that notification deals with the constitution of the Board consisting of seven members i.e. a Chairman, two Member (Technical), one Member (Administration), one Member (Financial), Secretary to the Government, in charge of Electricity (ex-officio) Member, Secretary to the Government, in charge of Finance, (ex-officio) Member. Clause 4 of the said notification deals with the transfer scheme. Sub Clause (2) of Clause 4 provides that the post of General Manager (Electricity), Agm (Technical & Distribution), Agm (Technical & Generation), Agm (Admn.) and Financial Adviser and Chief Accounts Officer of the Desu shall be re-designated as Chairman, Member (Distribution), Member (Generation), Member (Admn.) and Member (Finance) of the Board. Under Clause 4(5) of the said Notification all financial, administrative and disciplinary powers were to be exercised by the respective Members of the Board. However, vide notification 27th February,1997, the Lt.Governor of Delhi made amendments in the notification of 24th February,1997. Clause 4(2) as it stood vide notification dated 24th February,1997 stood omitted. Because of the notification of 27th February,1997, the respondent refused to redesignate the petitioner as Member Board. Respondent's defense was simple that in the absence of any specific order having been passed under Section 5(2) of the Act in favour of the petitioner by the Lt.Governor his post did not automatically got redesignated as Member Board. In the case of Mr.Y.P.Singh such an order was passed by the Competent Authority on 24th February,1997 itself. It is this stand taken by the respondent that the petitioner felt aggrieved and approached this Court.

(3) To appreciate the legal submissions reference can be made to Section 511-B(2)(i) of the D.M.C. Act and Section 5 of the Act which are reproduced as under:- Section 511-B(2)(i) : "Every officer and other employee serving under the Corporation immediately before such commencement in connection with the "transferred functions" shall be transferred to and become an officer or other employee of the new authority concerned with such designation as such authority may determine and hold office by the same tenure and at the same remuneration and on the same terms and conditions of service as he would have held the same if the new authority concerned had not been established and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the authority: Provided that the tenure, remuneration and terms and conditions of service of any such officer or other employee shall not be altered to his disadvantage without the previous sanction of the Central Government : Provided further that any service rendered by any such officer or other employee before such commencement shall be deemed to be service rendered under the new authority concerned : Provided also that the new authority concerned may employ any such officer or other employee in the discharge of such functions as it may think proper and every such officer or other employee shall discharge these functions accordingly. Section 5 of Electricity (Supply) Act,1948 5. Constitution and composition of the State Electricity Boards.- (1) The State Government shall, as soon as may be after the issue of notification under sub-section (4) of Section 1, constitute by notification in the Official Gazette a State Electricity Board under such name as shall be specified in the notification. (2) the Board shall consist of not less than three and not more than seven members appointed by the State Government. * * * * * * (4) Of the members- (a) one shall be a person who has experience of, and has shown capacity in, commercial matters and administration; (b) one shall be an electrical engineer with wide experience; and (c) one shall be a person who has experience of accounting and financial matters in a public utility undertaking, preferably an electricity supply undertaking. (5) One of the members possessing any of the qualifications specified in sub-section (4) shall be appointed by the State Government to be the Chairman of the Board. (6) A person shall be disqualified from being appointed or being a member of the Board if he is a member of [Parliament] or of any Sate Legislature or any local authority. (7) No act done by the Board shall be called in question on the ground only of the existence of any vacancy in, or any defect in the constitution of, the Board. The notification published in Part-IV of the Delhi Gazette Extraordinary, Government of National Capital Territory of Delhi under Section 5 of the Act dated 24th February,1997 is also relevant to understand the purpose of the establishment of the Board. The extract of that notification which are relevant are reproduced as under: Notification No.F.11(10)/92-LSG/P.F.(ii) - In exercise of the powers conferred by Section 5 of the Electricity (Supply) Act,1948 (54 of 1948) read with the Government of India, Ministry of Home Affairs' notification SO.68(E)No. U.14011/57/91/Delhi-II dated the 29th January,1997, the Lt.Governor of the National Capital Territory of Delhi is pleased to constitute a State Electricity Board for the National Capital Territory of Delhi under the name "Delhi Vidyut Board" (hereinafter referred to as "The Board") with effect from the 24th February,1997. The Board shall have jurisdiction over the whole of the National Capital Territory of Delhi except the areas within the jurisdiction of the New Delhi Municipal Council and the Delhi Cantonment Board. The constitution and other particulars of the Board shall be as follows :- Clause-4. Transfer Scheme : (1) With effect from the date of the notification issued by the Central Government under Section 511-A of the Delhi Municipal Corporation Act,1957 relating to electric supply, the Board shall be the "new Authority" referred to in sub-section (1) of Section 511-B of the said Act and shall perform the "transferred functions", being those relating to electric supply, referred to therein, and the provisions of Section 511-B of the said Act shall apply to the Board new authority in respect of electric supply. (2) The posts of General Manager (Electricity), Additional General Manager (Technical-Distribution), Additional General Manager (Technical-Generation), Additional General Manager (Admn.), and Financial Adviser & Chief Accounts Officer of the Corporation shall be re-designated as Chairman, Member (Technical), Member (Technical), Member (Administration) and Member (Finance) respectively of the Board. (3) The designations of the employees of the Corporation working under the Undertaking shall remain the same until modified by the Board. (4) All financial, administrative and disciplinary powers which were being exercised by the Corporation or by the Delhi Electric Supply Undertaking, shall, subject to and without prejudice to the powers of the Board under the Act, be exercised by the Board. (5) For the time being and subject to any rules which may be framed in this behalf, all financial, administrative and disciplinary powers which were being exercised by the General Manager (Electricity) under the Corporation shall be exercised by the Chairman, and all such powers which were being exercised by the Additional General Managers and the Financial Adviser and Chief Accounts Officer shall be exercised by the Manager(s) of the Board. (6) All financial, administrative and disciplinary powers which were being exercised by any officer or employee of the Undertaking who continues in the service of the Board shall, subject to such regulations as may be framed by the Board, continue to be exercised by them.

(4) The Lt.Governor issued another notification of the same date while exercising his power under sub-sections (2), (4) and (5) of Section 5 of the Act. The said notification was also published in Part-IV of Delhi Gazette - Extraordinary by Government of National Capital Territory of Delhi dated 24th February,1997, which is reproduced as under :- (TOBE Published In Part Iv Of The Delhi Gazette - EXTRAORDINARY) Government Of N.C.T Of Delhi (URBAN Development DEPARTMENT) Dated : 24th February,1997 Notification No.F.11(10)/92-LSG/PF(iv) - In exercise of powers conferred by sub- sections (2), (4) & (5) of Section 5 of the Electricity (Supply) Act,1948 (54 of 1948) read with the Government of India, Ministry of Home Affairs' Notification S./O. 68(E) No.U.14011/ 57/91-Delhi-II dated the 29th January,1997, the Lt.Governor of the National Capital Territory of Delhi, hereby appoints, with immediate effect, the following persons/officials to be the Chairman and Members respectively of the Delhi Vidyut Board constituted under this Government's Notification No.F.11(10)/92-LSG/PF (ii) dated the 24th February,1997, namely :- i) Sh.V.K.Duggal - Chairman ii) Sh.Y.P.Singh - Member (Technical) iii)(To be nominated Later) - Member (Technical) iv) (To be nominated Later) - Member (Adm.) v) Smt.Radha A.Nanjnath- Member (Finance) vi) Sh.S.R.Arya, Pr.Secretary(UD) Govt.of Nct Delhi - Ex.-Officio Member vii)Sh.Dev Trivedi, Secretary (Finance) Govt.of Nct Delhi - Ex-Officio Member. By order and in the name of Lt.Government of National Capital Territory of Delhi. sd/- ( N.C.RAY ) JT.SECRETARY (U.D.) Subsequent thereto the Lt.Governor issued another notification dated 27th February,1997 thereby ordering omission of sub-clause (2) of Clause 4 of the notification dated 24th February,1997, which reads as under :- (TO Be Published In PART-IV Of Delhi Gazette - Extraordinary, GOVT. Of N.C.T. Of DELHI) (URBAN Development DEPARTMENT) No.F.11(10)/92-LSG/PF(i) Dtd:27.2.1997 Notification No.F.11(10)/92-LSG/P.F.(i) - The Lt. Governor of the National Capital Territory of Delhi is pleased to make the following amendments in notification No.F.11(10)/92-LSG/PF.(ii) dated the 24th February,1997 issued under Section 5 of the Electricity (Supply) Act,1948 (54 of 1948) regarding the constitution of the Delhi Vidyut Board, namely :- In the said notification, in Clause 4 - (a) Sub-Clause (2), shall be omitted; (b) in Sub-clause (3), for the word "other", the word "the" shall be substituted; (c) in sub-clause (5), for the words "corresponding member of the Board", occurring at the end thereof, the words "member(s) of the Board" shall be substituted. By order and in the name of Lt.Governor of the N.C.T. of Delhi, sd/- ( N.C.RAY ) JT.SECRETARY (UD)

(5) Mr. Shanti Bhushan, Senior Advocate appearing for the petitioner contended that since the Desu was already in existence, therefore, keeping in view the provisions of Section 511-A and 511-B of D.M.C.Act, the Government decided to re-designate the post of the General Manager, Agm and Finance and Chief Accounts Officer. This was done by the Competent Authority vide notification of 24th February,1997. This the Competent Authority did under the power vested in him. These powers were exercised by the Lt. Governor under section 5 of the Act read with section 511-B(2)(i). Reading of these provisions makes it clear that on transfer of functions, officers and employees of new authority concerned (in this case the Board) would be given such designation as the authority may consider. The authority in this case while issuing the notification of 24th February,1997 exercised that power and designated the top five posts which were held by the erstwhile officials of the DESU. That while redesign ting these five posts the incumbents thereon who were occupying the same automatically occupied the redesignated posts as per clause 4(2) of the notification of 24th February, 1997. Clause 4(2) only dealt with the five top posts in order to make it clear that henceforth the power exercised by them as General Manager and Additional General Managers shall be exercised by them in the redesignated capacity i.e. Chairman and Members. It was in this background that the Competent Authority under clause 4(5) directed that all powers till then being exercised by these five functionaries of Desu would be exercised by them in the corresponding redesignated posts.

(6) That even after the reconstitution of the Board, the number of top posts remained the same. So much so their financial and administrative powers as well as emoluments remained the same. Hence after the notification of 24th February,1997 the incumbents of these five top posts were called by the redesignated names i.e. Chairman and Members Board. Since the posts were redesignated hence the officers who were occupying these posts automatically got redesignated as Chairman and Members. By redesignation of the posts neither the nomenclature changed nor the powers of those five incumbents changed. It has never been the case of the respondent that fresh appointments were made for the Board. Reading of the notification dated 24th February,1997 under sub-section(2)(4) & (5) of Section 5 of the Act would show that the persons who were holding the posts in the erstwhile Desu only got redesignated. The petitioner's name was omitted deliberately as was done earlier when he had to approach to this Court. To substantiate this point Mr.Shanti Bhushan, Senior Advocate drew my attention to clause 4 of notification dated 24th February,1997, referred to above. There it has specifically been mentioned that the Board shall be the "new authority" referred to in sub-section (1) of section 511-B of the said Act and shall perform the "transferred functions". After redesignation of the posts the post of General Manager ceased to exist w.e.f. 24th February,1997. Similarly, for the post of A.G.Ms. it was not necessary for the competent authority to issue separate orders of appointment. Notification of 24th February,1997 covered the eventuality stipulated under section 5(2) of the Act. By exercising the powers under Section 5 of the Act, the competent authority included in it the power of appointment on the redesignated posts. Those incumbents who were holding those posts under Desu, no separate appointment order was required to be passed particularly when Notification dated 24th February,1997 was general in nature issued under Section 5 covering all aspects. The conclusion is fortified from the reading of the notification issued under sub-section (2)(4) & (5) of Section 5 of the Act dated 24th February, 1997. A perusal of the same show that no new person was appointed against any of the redesignated posts. Mr.V.K.Duggal who was working as General Manager in Desu was redesignated as Chairman. Similarly, Mr.Y.P.Singh working as A.G.M. in Desu was redesignated as Member Board. Two posts of Member(Technical) and (Administration) were left vacant and on the remaining posts those persons were shown who had been working earlier in DESU. So the reading of the notification clearly establishes that the petitioner had been discriminated. His name was deliberately omitted. No interviews were held nor Selection Board met to consider the appointment of any person against those post nor any record was produced to show otherwise. Mr.Y.P.Singh was shown as Member Board because he was holding the post of Agm in Desu whereas petitioner was deprived of the same without any justification. The respondent not only denied him his right accruing on the basis of the notification under section 5 of the Act but on realising that a legal right had accrued in his favour and in order to deprive him of the same, issued the impugned notification dated 27th February, 1997. By the impugned notification dated 27th February,1997 not only the petitioner has been prejudiced but has been deprived of the benefits accruing from the post of Member. As regard the other incumbent to the post of Agm (Administration), he being a member of Indian Administrative Services and on deputation may not have been interested. Whereas the petitioner was a permanent employee of DESU. He could not have been deprived of his right to be redesignated as Member (Technical). But the respondents for the reason best known to them showed this post as vacant with a rider that the same shall be filled by nomination.

(7) That neither section 511-B of the D.M.C. Act nor Section 5 of the Act give powers to the State Government to nominate any person on the redesignated post. Rule framed and notified in Part-IV of Delhi Gazette-extraordinary of 24th February, 1997 clearly indicate that all financial, administrative and disciplinary powers which vested in the high officials of Desu, namely G.M. and A.G.Ms are to be exercised by the Chairman and Members of the Board respectively. The rules have been framed by the Lt.Governor in exercise of his powers under section 78 of Electricity (Supply) Act, 1948 read with notification dated 24th February, 1997 and in particular clause 4(2) & (5) of that notification a clear picture emerges i.e. the Lt.Governor while exercising his powers under section 5 of the Act or under Section 511B of the Dmc Act did not create any new posts rather as per Section 511-B the five top posts under the Desu were redesigned on the Board when the Board was constituted. Those top officials under the Board are to be called Chairman and Members of the Board. The notification dated 27th February,1997 only omitted sub-clause (2) of clause 4. The State Government did not amend or modify sub-clause (5) of clause 4 of that notification nor amended the rules. Thus the intention of the State Government while issuing the notifications clearly show that it was the post of the Agm which was to be called Member of the Board and that of the General Manager to be Chairman. All the powers which were being exercised in the erstwhile Desu by the General Manager (Electricity), AGMs and financial Adviser and Chief Accounts Officer were to be exercised by the corresponding Members of the Board.

(8) Contention of Dr. Abhishek Manu Singhvi, Additional Solicitor General appearing for the respondent that Section 511-B(2)(i) was intended by the Legislature to provide continuity of service so that break in service could be prevented. There cannot be any quarrel with this proposition nor it can be doubted that all those employees working in the erstwhile Desu automatically became employees of the Board i.e. the new organisation and it was done under Section 511-B to keep continuity of service. The provisions of Section 511-B(2)(i) does not deal with any particular post or any particular class of posts. Therefore, so far as Section 511-B(2)(i) is concerned it only provided continuity of service which has been given to the petitioner. In fact reference to Section 511-B(2)(i) by petitioner was only to show continuity of petitioner in the new organisation i.e. the Board. Once it is accepted that the petitioner would hold the same post which he was holding under Desu the continuity is established. It is in fact after the continuity is established that we have to examine what status petitioner has to enjoy i.e. of Agm or of Member. Reading of the notification dated 24th February,1997 as a whole would show that petitioner was to enjoy the status of Member and exercise the powers as Member. I am afraid Dr.Singhvi when based his argument on Section 511-B ignored the notification dated 24th February,1997. We have to read the provision of Section 511-B with the notification of 24th February,1997. Continuity of service is provided under Section 511-B of the D.M.C. Act and what designation the incumbent of that post would get is stipulated in the notification issued under Section 5 of the Act. Contention of Dr.Singhvi that posts of Agm had not been abolished is bellied from the reading of clause 4(5) of the notification dated 24th February,1997 read with the rules issued on the same date. There is no provision in the notification under Section 5 of the Act or under the rules giving powers to the Lt.Governor to nominate any member of the Board. Therefore, the indication given in the notification issued under Sub-sections (2) (4) & (5) of Section 5 dated 24th February,1997 that the posts of Member (Technical) and Member (Admn.) would be filled up by the Competent Authority by nominating some one later, to my mind, cannot be supported under law nor under Section 5 of the Act.

(9) SUB-SECTION (2) of Section 5 of the Act as reproduced above clearly indicate that the State Government shall appoint seven Members. It does not empower the State Government to nominate any one of them. For appointment what procedure has to be followed is clearly given under Sub-Sections (4) (5) & (6) of Section 5 of the Act. No powers to nominate have been provided. Similarly the Rule 4 which deals with the terms of office and conditions of reappointment of members of the Board talks about "appointed". It does not say nominated. For appointment the authority was to keep in view the eligibility and qualification whereas for nomination no eligibility criteria is prescribed. For this reason also the notification under Sub-Section (2) (4) & (5) of Section 5 of the Act is bad in law. The State Government could not keep two posts of Members vacant to be filled up by nomination.

(10) Reliance by Dr.Singhvi on the decision of Calcutta High Court in the cases of K.D.Banerjee Vs. Lic of India, and B.B.Dass Vs. Zonal Manager, Life Insurance Corporation (1964) 68 Calcutta Weekly Notes, 1075 (at page 1078 and 1080) is misplaced. It is nobody's case that the petitioner is asking for promotion or change of service conditions. What he is asking is that the post of Manager (T) held by him under the Desu as Agm and which got redesignated under Section 5 of the Act by the Lt. Governor cannot be deprived to him. In the case of K.D.Banerjee (Supra) the tenure, remuneration, terms and conditions, right and privileges which pre-existed when the services of the petitioner were taken over by the Corporation were allowed to continue. Therefore, the Court observed that since these rights and privileges had not been altered hence no prejudice had been caused to the said petitioner. Same was the case of B.B.Dass. But the facts in the present case are distinguishable. In the case in hand five top posts which were there in Desu got redesignated on 24th February,1997 as Chairman and Members Board. The power exercised by the General Manager (Electricity) and the AGMs in the erstwhile Desu had to be exercised by the Chairman and Members of the Board. Therefore, it cannot be said that after the formation of new authority the right, powers and privileges of the petitioner have not been altered to his disadvantage. Merely saying that the post of Agm is still available does not mean that the petitioner will enjoy the same powers and privileges which he had been enjoying as Agm in the erstwhile DESU. As per Clause 4(5) of the Notification dated 24th February,1997, all powers, privileges and positions financial, administrative etc. which were exercised by the erstwhile Agm in Desu are now to be exercised by Member Board. This shows that there is an alteration in the power and privileges which the petitioner would have enjoyed had he been made member of the Board. Similarly, by being deprived as Member of the Board his terms and conditions have been altered. By becoming a member of the Board he would have continued upto the age of 60 years whereas now the respondents are superannuating him at the age of 58 years. Thus by depriving him to be a Member of the Board his right to retire at the age of 60 years has been deprived.

(11) Further contention of Dr.Singhvi that post of Agm has not been abolished as was done in the case of G.M. That argument is far-fetched. Section 511(b) to (i) of the D.M.C.Act, clearly states that the new authority can redesignate the post. The power to constitute the Board is with the State Government and the State Government while constituting the Board under Section 5 of the Act redesignated the five top posts of Desu, thereby leaving no scope open to doubt that that very post of Agm which was being held by the incumbent became the post of Member in the Board. It would not be correct to say that the post of Agm which was held by the petitioner still continues or by implication did not stand abolished. As already observed above it is a case of redesignation. Therefore, separate specific letter of appointment was not required to be issued. It has already been pointed out while discussing the notification that State Government cannot nominate a Member of the Board. He has to be appointed under Section 5 of the Act. While issuing notification under Section 5 of the Act the State Government may appoint all the persons who were holding those posts on the redesignated posts but for unexplained reasons did not redesignate the petitioner. It is the case of appointment by re-designation. Hence a legal right accrued in favour of the petitioner as on 24th February,1997. It would be wrong on the part of respondent to contend that notification dated 24th February,1997 was only under Section 5(1) of the Act and not under Section 5(2) of the Act. In fact reading of Notification of 24th February,1997 as a whole makes it clear that the Lt.Governor in exercise of his powers under Section 5 of the Act issued the notification. It was not restricted either under Sub Section (1)or(2) of the Act. That is the reason in clause 4(2)itwas mentioned that all those persons who were holding the post of G.M. and A.G.Ms would be redesignated as Chairman and Members of the Board. By saying so the Lt.Governor exercised the powers under Section 5(2) of the Act. The intention of the State Government is clear from the reading of the Notification as a whole. Therefore, it is not correct on the part of respondent to contend that merely because Section 5 of the Act has generally been used in the opening part of the Notification it may not be read that Lt.Governor exercised the powers both under Section 5(1) and 5(2) of the Act. This argument, to my mind, cannot be accepted. It can also not be appreciated that the Lt.Governor did not apply his mind while issuing the notification under Section 5 dated 24th February,1997 as Dr.Singhvi wants this Court to believe or that he properly exercised his mind and then issued amendment vide notification dated 27th February,1997.

(12) That it is not a case of new appointment. If it had been a case of re-appointment as a Chairman or a Member of the Board then nothing has been placed on record to show what criteria was followed by the Lt.Governor for making the appointment of Mr.V.K.Duggal as Chairman and Mr.Y.P.Singh as Member. No material has been placed on record to show that while making the appointment of Mr.Duggal and Mr.Singh the procedure laid down under Section 5 was followed. This fact itself makes it clear that the Lt.Governor treated this to be a redesignated post, that is how he appointed Mr.V.K.Duggal who was occupying the post of G.M. as Chairman and Mr.Y.P.Singh who was occupying the post of Agm as Member Board and that of Radha A. Nanjanath who was occupying the post of AGM(Accounts) as Member (Finance) and other people as Members (Ex-officio). But conveniently left the posts of Agm (T) and AGM(A) to be vacant which action in law cannot be upheld.

(13) Further more it must be clarified that petitioner's case is neither of promotion nor enhancement and improvement of his status. That the petitioner is not seeking a declaration. His case is based on notification dated 24th February,1997 by virtue of which his post of A.G.M. got redesignated to Member Board. And that this legal right which accrued to him vide notification of 24th February,1997 has been taken away vide the subsequent notification dated 27th February,1997 without following due procedure of law and hence illegal. The moment petitioner was deprived of his post a legal right flowed in this petitioner to seek mandamus. The right sought by the petitioner is judicially enforceable for the endorsement of which the mandamus would lie. The contention of Dr.Singhvi that within three days the State Government corrected the mistake committed by it when it issued the Notification under Section 5 dated 24th February,1997, goes to prove the case of the petitioner that enforceable right which accrued in his favour on 24th February,1997 under the garb of omission or clarification was taken away hence he is legally justified in enforcing the same. Once a legal right had accrued in his favour on account of the notification dated 24th February,1997, the said right cannot be taken away by the respondent by a subsequent notification dated 27th February, 1997 with retrospective effect. The impugned notification dated 27th February,1997 which took away the right of the petitioner is, therefore, arbitrary, illegal and bad in law.

(14) For the reasons stated above the petition is allowed and the rule is made absolute. Respondent is directed to redesignate the petitioner as Member (Technical). of the Board.