Andhra HC (Pre-Telangana)
P. Bharath Bhushan And Anr. vs Government Of Andhra Pradesh And Ors. on 30 November, 2004
Equivalent citations: 2005(3)ALD185
ORDER V. Eswaraiah, J.
1. Though the arguments are common, the entire batch of 65 cases are divided into two categories. In one batch of writ petitions, the petitioners challenge the action of the respondents in not considering the revised options submitted by them as wholly arbitrary, illegal and contrary to the terms of the tripartite agreements and violative of Articles 14, 16 and 21 of Constitution of India and to direct the respondents to consider the revised options of the petitioners and permit them to be in Andhra Pradesh Northern Power Distribution Company Limited (APNPDCL).
2. Some of the writ petitions are filed to declare the action of the respondents in allotting them to different distribution companies ignoring the revised options pursuant to the press statement said to have been issued by the Additional Secretary-cum-Convener of High Level Committee published in Eenadu, Telugu Daily News Paper dated 11-7-2002 as illegal and contrary to the Tripartite agreements and violative of Articles 14, 16, and 21 of the Constitution of India and to direct the respondents to consider the revised option exercised by them for their allotment in respect of the distribution companies as per the revised option.
3. The prayer in some of the writ petitions is to declare the action of the respondents in preparing the individual seniority list company wise instead of following the combined seniority list prepared by erstwhile APSEB, which is affecting the seniority of the employees as illegal and arbitrary and to direct the respondents to allot them to APNPDCL where the juniors of petitioners are getting promotions earlier to them.
4. Thus the W.P. Nos. 500 of 2002, 14801 of 2002, 16439 of 2002, 16441 of 2002, 16653 of 2002, 15676 of 2002, 17154 of 2002, 18008 of 2002,17730 of 2002, 19647 of 2002, 19341 of 2002, 20963 of 2002,21312 of 2002, 20736 of 2002, 21547 of 2002, 2317 of 2003 and 7869 of 2003 have been filed challenging the action of the respondents in not considering the applications filed by the petitioners to reconsider their options who have been allotted to the respective companies as per their first option exercised in pursuance of the option letter dated 27-4-2002.
5. The petitioner in W.P.No. 502 of 2003 was allotted to APGENCO which was his 6th preference. His representation for reconsideration of his option to APNPDCL was rejected. The petitioners in W.P.No. 17146 of 2002 were also allotted to APGENCO, which is their 6th preference. They have made an application for revised allotment, but, their revised option was not accepted. The cases of the petitioners in W.P. 17146 of 2002 and W.P. No. 502 of 2003 were not considered on the ground that there is no post available for them in the A.P.TRANSCO or DISTCOMs.
6. The other batch of Writ Petitions are filed to declare the action of the official respondents in effecting the promotions in certain categories ignoring their seniority under the combined seniority list of erstwhile APSEB as illegal and contrary to the tripartite agreements and Rule 7 of A.P. Electricity Reforms (Transfer Scheme) Rules 1999 and to direct the official respondents to promote them based on the combined seniority list of erstwhile APSEB.
7. Heard the arguments of Mr. Sharat Kumar and Mr. K. Vasudeva Reddy, the learned Counsel appearing for the petitioners and Mr. G. Vidya Sagar and Smt. K. Shesha Rajyam, the learned Counsel appearing for the respondents.
8. The case of the petitioners is that Andhra Pradesh Government has brought the Electricity Reforms Act, 1998. The sole object of the underlying reforms is to provide for the constitution of Electricity Regulatory Commission, restructuring of the Electricity Industry, Rationalization of generations, Transmission, Distribution and supply of electricity avenues for participation of private sectors in the Electricity Industry and generally for taking measures conducive to the development and management of electricity industry in an efficient, economic and competitive manner and for matters connected therewith or incidental thereto. In pursuance of the said Act, the Government formulated A.P. Electricity Reform (Transfer Scheme) Rules, 1999 and constituted (1) Generation Corporation of A.P. Limited, (2) Transmission Corporation of A.P. Limited, (3) Eastern Power Distribution Company of A.P. Limited, (4) Southern Power Distribution Company of A.P. Limited, (5) Central Power Distribution Company of A.P. Limited and (6) Northern Power Distribution Company of A.P. Limited. All these companies are constituted under the Companies Act. The Government in pursuance of the said objective wanted to organize the staff into six companies. Accordingly the Government of Andhra Pradesh held negotiations with the service organizations and also with representatives of these companies for common consensus by entering into tripartite agreement. The tripartite agreements were arrived for various aspects of the service conditions of the employees apart from the organization of these companies and distribution of assets and liabilities. In pursuance of the tripartite agreement, a high level committee has been constituted to finalize the options of individual employees at various levels for organization of the staff into these six companies. The Chairman and Managing Director of A.P.TRANSCO Limited vide letter dated 4-5-2002 explained the features of tripartite agreement and assured individual members that under the Reforms Act, the transfer schemes and tripartite agreements would not hamper the benefits of employees existing as on date of restructuring. The terms and conditions of service in the successor entities would not in any way be less favourable to those applicable in the APSEB. The employees will not be subjected to any kind of discrimination or victimization and the reforms are intended to improve the electricity generation and transmission with a constant benefit to the employees. In pursuance of the above policy of the erstwhile APSEB to reorganize the staff into six companies they have started this scheme for obtaining options from the existing employees of APSEB in order to know in which company they would like to get absorbed vide Circular dated 27-4-2002 of Transmission Corporation of A.P. Limited inviting each individual to exercise his/her option to any one of the said six companies in order of preference. Proforma is also affixed to the circular dated 27-4-2002 addressed to the individual members. The last date to exercise options was extended up to 10-6-2002. Guidelines have been prescribed to consider the options exercised by them based on the seniority, relevant work experience and sanctioned posts in the respective companies.
9. It is stated that if the procedure prescribed in the said circular is strictly followed none of them will get the first option exercised by them but A.P.TRANSCO without following the procedure prescribed under Circular dated 27-4-2002 allotted them as per their first option exercised. It is their case that they are not entitled to be allotted as per their first option, but they are entitled to the second or other options. It is stated that the Additional Secretary-cum-Convener of High Level Committee gave a statement which was reported on 11-7-2002 giving another chance to exercise revised option. Accordingly, the petitioners have submitted their revised options but their cases have not been considered by the High Level Committee which met on 6-8-2002. No orders were communicated to them rejecting their request for considering revised options. The said action of the respondents is illegal and arbitrary. It is further stated that they are presently working in APNPDCL though their first option was in favour of APTRANSCO and they are entitled for promotion in APNPDCL. They have been working without any stigma with all appreciation of the departmental heads. They are entitled for their retention in APNPDCL as they have been working there since a decade.
10. In another batch of writ petitions, the petitioners were working in AP TRANSCO or some other companies and they submit that common seniority of the erstwhile APSEB shall be maintained while effecting promotion in any of the six companies. It is further stated that after exercising the first option the respondents have invented a novel method and issued a separate notification dated 10-7-2002 which was published in Eenadu on 11-7-2002 facilitating the employees to submit their revised options and the said process is going on and pursuant to the said notification the promotions in the respective companies were taken into account on 31-3-2003 to accommodate several personnel in other DISTCOMs effecting the promotional avenues of the petitioners. Consideration of options of certain personnel pursuant to their revised options in placing them against the sanctioned strength causing immense loss to them. As a result of which, junior most employees were allotted to distribution companies and they got promotions, ignoring the claims of eligible senior most officers as per the combined seniority list of erstwhile APSEB. The said action of the respondents in considering the revised options is contrary to the tripartite agreement. It is stated that petitioners are also entitled for promotion on par with their juniors in other distribution companies.
11. It is the contention of the respondents that the options exercised by petitioners were strictly considered in conformity with the Circular dated 27-4-2002 calling upon them to exercise the options taking into account, the norms fixed therein i.e., the seniority, relevant work experience, sanctioned posts etc., and the petitioners were given adequate time to think to exercise their options. Though the time for filing of option forms was 28-5-2002 it was extended up to 10th June, 2002. Thus, 40 days time was given to exercise their option. The seniority list of employees and the vacancies available in each company were exhibited. The petitioners were also made known about the same. Petitioners having kept their eyes wide open and after considering the seniority list and the preferential company, they have given first preference to A.P.TRANSCO consciously. The seniority list and vacancy position was also circulated to the associations, which are parties to the tripartite agreement and the said seniority list was never disputed by the associations nor employees including the petitioners. The petitioners having exercised their options are estopped from going back upsetting the process, which has been resorted to by APTRANSCO for the last 5 years frustrating the Electricity Reforms Act. The circular dated 27-4-2002 specifically states that the decision of the High Level Committee shall be final and binding. The High Level Committee uniformly did not reconsider the revised options, which were allotted on their first preference. The options were considered as per the guidelines of seniority-cum-work experience with reference to their options. Therefore, the first option of the personnel was not considered keeping in view the guidelines mentioned in the circular. The conditions of the tripartite agreement, length of the service, and relevant work experience formed the criteria for the option process. Appropriate weightage was given to these criteria for generating options score reached employee. Options score so generated coupled with preferences expressed and the sanctioned posts were taken on the basis by the High Level Committee for allotment of employees across the six companies. Therefore, it is incorrect to state that the length of service and relevant work experience was not given weightage while considering options. The petitioners were allotted to A.P.TRANSCO solely on the basis of their first option based on the relevant experience and length of service.
12. As regards the revised options are concerned, it is stated that the petitioners have been allotted on their first option to APTRANSCO duly informing them vide separate letters. While informing some other personnel, who are not allotted as per their first option, were requested to represent individual hardships, if any, to the High Level Committee before 25-7-2002, so that the High Level Committee can consider them on merits of each case and were informed that the decision of High Level Committee shall be final and binding. The news item that appeared on 11-7-2002 is not issued by the second respondent and there is no basis for the said news item and the basis is only the individual letters addressed to certain personnel whose first options were not considered. There is no press statement issued by the Additional Secretary/Convener of High Level Committee inviting appeals from the employees allotted to first preference. The petitioners, therefore, cannot interpolate the news item to suit their claim as the matter of right for the revival/revision of options by the High Level Committee. The High Level Committee considered their representations on 6-8-2002 and decided that such of those representations received from the employees allotted on the first preference deserves no consideration for revision/revival since they have been allotted on first preference are on advantageous position over those were not allotted and the High Level Committee decided to give an opportunity to such of those employees. The High Level Committee finalized the allotment of employees who filed the representations and the allotment was published on the notice boards of all the companies. There is no deviation while considering options as regards the criteria agreed in the tripartite agreement entered with all the employees associations/ unions i.e., length of service and relevant work experience which formed the basis for option process. Availability of vacancies in NPDCL after allotment of employees was completed and 94% of engineering service employees were allotted to the companies of their first preference.
13. It is stated that all the personnel were well informed having been given adequate information, opportunity and time, before exercising their rationale judgment, chosen the relevant company as per their first choice after weighting pros and cons of their decision. Petitioners were allotted to A.P.TRANSCO and APNPDCL on their first option preference solely based on the option score generated and also based on the relevant work experience and length of service. It is stated that as and when the employees have specifically requested for relevant option scores, the High Level Committee supplied the option scores of the employees concerned to lay at rest any doubts in relation to above criteria adopted and this score generated based on the criteria. Accordingly the representations of 49 employees for review of options and revision of allotment of companies were considered by the High Level Committee, which goes to establish that the option process was carried out in a very transparent manner. The petitioners allotted on their first preference to the companies were informed individually through letters of their allotment to the company concerned. The employees, who were allotted to the company other than the first option, were alone requested to represent individual hardship if any to the High Level Committee before 25-7-2002. The High Level Committee considered them on merits in each case taking into the factors (1) not allotted in the initial round, (2) score review cases, (3) spouse cases, (4) single lady cases, (5) nearing retirement cases, (6) Medical cases and (7) domestic and other representations. The High Level Committee was empowered to carry out the options for transfer of personnel among the successor companies in exercise of its inherent powers and finalized the same on 6-8-2002 allotting the employees who filed representations and the same was published on the notice board. Filling up of posts by the High Level Committee in exercise of sanctioned posts in few cadres to mitigate the hardship of employees arising out of above process is in no way affects the seniority or the promotional prospects of the petitioners. It is stated that there is no provision either in the tripartite agreement or the Act or the scheme to adopt combined seniority list of erstwhile APSEB as the basis for promotion as alleged by the petitioners. The petitioners without impleading the personnel who have got promotions in other companies cannot file the writ petitions. The above process and the transfer scheme has been implemented strictly in accordance with the Rules.
14. Insofar as the other batch of writ petitions is concerned, it is stated that in respect of the employees who could not be allotted to their first preference, they were issued with allotment letters allotting to one of the corporation. Apart from that, they were also given an opportunity to make a representation in respect of their allotment before 25th July, 2002. They were asked to make representation accompanied by supporting documents/evidence justifying their allotments to other companies. The said opportunity was not given to the employees whose cases are being considered and allotted as per their first option choice. The High Level Committee which met on 6-8-2002 considered the genuine cases of other employees who could not be allotted to their first preference keeping in view of the vacancies which would arise due to promotions/retirement up to 31-3-2003. Thus, the final absorption to the respective companies was completed by the middle of the August, 2002 and all the employees were allotted to the respective companies as per the seniority and other service conditions have also joined in August, 2002. The criteria for allotment and finalization of option was seniority, work experience and sanctioned posts. Petitioners have exercised their options in favour of TRANSCO and accordingly they have been allotted to A.P.TRANSCO. Thus, after final absorptions, the petitioners have been exclusively allotted to the company i.e. TRANSCO from the date of final allotment. The news item appeared on 10/11-7-2002 is neither a clarification nor a decision of the High Level Committee and the said news item is a misquoted statement. The High Level Committee as already stated, the revised options considered in respect of the cases not allotted in the initial round and based on score, score review cases, spouse cases, single lady cases, nearing retirement cases, medical cases and domestic and other representations. Therefore, it is incorrect to state that representations were called from all the employees including the employees whose first options were considered. The petitioners have been finally absorbed in APTRANSCO, in accordance with the guidelines issued in the circular, tripartite agreement, Act and Rules. The allegation that junior most employees were allotted to distribution companies got accelerated promotions, ignoring the claim of eligible senior most officers as per the combined seniority list of erstwhile APSEB is misconceived. After finalization of the allotments and issuance of T.O.O.Ms.No. 160 dated 13-8-2002, the petitioners are ceased to be employees of erstwhile APSEB and they become exclusive employees of A.P.TRANSCO and the combined seniority list of erstwhile APSEB is ceased to exist. Therefore, no comparison can be made since the erstwhile combined seniority does not exist after TOO Ms.No. 160 dated 13-8-2002 is issued. After absorption of employees, in the respective companies separate seniority list ensuing their relevant seniority in each and every category basis has come into existence. As per availability of the vacancy in respect of companies and as per the combined seniority in the transferee company, promotions were given to the eligible based on the seniority and therefore, the petitioners working in APTRANSCO cannot be compared with the persons who have absorbed in APSEPDCL and APNPDCL. Petitioners were also informed accordingly that they cannot compare themselves with the posts available in other distribution companies and the petitioners' cases would be considered as per their seniority list in the APTRANSCO alone. The transition period mentioned in the tripartite agreement and the Rules not to exceed the maximum period of five years and there is no minimum period to complete the process of completing the options for the allotment of personnel in respective companies. After final allotment, the transition period has come to an end by 13-8-2000 itself. The orders issued in TOO 130 dated 23-8-2003 is only a clarification to TOO, dated 13-12-2002. To exercise their options as per the tripartite agreement for the transfer of mutual consent of the companies concerned, availability of the posts in the equal category or grade subject to further condition that they should forfeit their lien and seniority in the company to which he or she belongs and accepts last rank in the seniority fixed for the category or grade in the class of service or different service in other companies with reference to the date of his appointment in the transferee company. Even though mutual transfers and transfers to other companies forgoing the service etc., was also discontinued from 31-1-2004 onwards. Therefore, the said TOOs are not preferable to transfer in the period referred in the tripartite agreement. It is stated that none of the juniors to the petitioners were promoted to the higher posts insofar as the TRANSCO is concerned after option process. Petitioners were absorbed into A.P.TRANSCO as per their options and they are not entitled to be treated as employees of other companies other than the APTRANSCO.
15. From the aforesaid pleadings the questions that arise for consideration are:
(1) Whether the combined seniority list of erstwhile APSEB/AP TRANSCO, continues to be maintained even after the second transfer scheme in respect of the employees who were absorbed in different companies as per the circular dated 27-4-2002 under tripartite agreements?
(2) Whether the employees were allotted as per their option criteria to the different companies are entitled to be treated on par with their colleagues in other companies who got promotions?
(3) Whether the employees allotted to the respective companies are ceased to continue the employees of erstwhile APSEB?
(4) Whether the employees that were allotted as per their option to the respective companies became the permanent employees of that particular company entitling the promotion as per the seniority in the transferee company alone?
16. The Government of Andhra Pradesh decided to formulate a policy to restructure the APSEB for the purpose of restructuring the operational and financial viability to meet the future demand for sufficient supply of energy and to pull out the Board from persisting revenue deficits. But the employees of APSEB were opposing such policy on the apprehension that their services will be privatized and that there would be retrenchment in the services resulting in loss of employment and also that their service conditions will be adversely affected even though the Government has clearly stated that there is no place for such apprehension of employees. For the smooth implementation of the policy of restructuring of the Board and to clear the apprehensions being entertained by the employees, tripartite agreements were entered between Government of Andhra Pradesh with different eight APSEB employees unions, APSEB in August/ September, 1997. The similar conditions or clauses incorporated in all the eight tripartite agreements. Those different eight recognized unions are"
(1) APSEB Employees Union, (2) Telugunadu Vidyuth Karmika Sangam, (3) A.P. State Electricity Board, Secretariate (P&G) Service Employees Association, (4) A.P. State Electricity Board Junior Account Officers Association, (5) A.P. State Electricity Board Account Officers Association, (6) A.P. Power Diploma Engineers Association, (7) APSEB Assistant Engineers Association and (8) A.P. Electricity Board Engineers Association.
The mutual conditions agreed between the parties as set out in the agreements are that in the event of APSEB is reorganized into two or more corporate entities, there will not be any retrenchment of employees and for any reason, the status/service will not be changed. The terms and conditions of service upon transfer to the corporate entities, such as promotions/transfers, leave and allowance etc., regulated by existing regulations/service rules in vogue will be guaranteed to continue to be the same and any modification shall be by mutual negotiations and settlement without detriment to the existing benefits. With regard to weightage negotiations present system of bipartite negotiations shall continue. The successor entities of APSEB will enter into all future weightage settlements including the weightage revision due from 1-7-1978. The Government and the successor corporate entities guaranteed the payment of pension including dearness allowance relief and other terminal benefits that are in force as on the date of the agreement. All existing welfare measures like the schemes for compassionate appointments and medical reimbursement etc., shall be continued. All benefits of the services rendered by the employees in the Board as on the date of restructuring i.e., the effective date shall be protected and shall be given full effect. The period of service of the employees under the Board and other corporate entity shall be treated as continuous service for the purpose of all service benefits and terminal benefits payable to the personnel. All the existing service benefits will be protected even after the absorption in the corporate entities. The employees transferred to the service of corporate entity shall be deemed to have entered into agreement/settlement with corporate entity to fulfil obligations assumed by them with the Board including in respect of repayment of the loans, advances and other sums due which remains outstanding from the employees on the effective date. All disciplinary proceedings pending at the time of restructuring shall be dealt with by the successor entities. Government constituted Task Force for the management of reform/restructuring process. If the newly created corporations failed to implement the agreed points, the State Government shall take up responsibilities to get them implemented.
17. Within a year from the date of tripartite agreement, the A.P. Electricity Reform Act, 1998 (hereinafter referred to as "the Act") was enacted. The Act was enacted for constitution of Electricity Regulatory Commission, restructuring of Electricity Industry, rationalization of generation, transmission, distribution and supply of electricity avenues for participation of private sector in the electricity industry and energy for taking measures conducive to the development and management of the electricity industry in an efficient, economic and competitive manner and for matters connected therewith or incidental thereto.
18. Part VII of the Act deals with reorganization of electricity industry. The relevant Section 23 of Part VII of the Act is extracted under:
"23. Reorganisation of State Electricity Board :--(1) With effect from the date on which a transfer scheme prepared by the State Government to give effect to the objects and purposes of this Act is published or such further date as may be prescribed by the State Government (hereinafter referred to as the effective date), any property interest in property, rights and liabilities which immediately before the effective date belong to the Board shall vest in the State Government on such terms as may be agreed between the State Government and the Board.
(2) Any property, interest in property rights and liabilities vested in the State Government under Sub-section (1) shall be re-vested by the State Government in the APTRANSCO and generating company or companies, in accordance with the transfer scheme so published along with such other property, interest in property, rights and liabilities of State Government as may be specified in such scheme, on such terms and conditions as may be agreed between the State Government and the APTRANSCO or generating company or companies, as the case may be.
Explanation:--For the purpose of this Part generating company or companies shall mean the company or companies to be incorporated to implement the reorganization of the Electricity Industry in the State.
(3) Such of the rights and powers exercisable by the Board under the Electricity Supply Act, 1948 as the State Government may, by notification specify, shall be exercisable by the APTRANSCO or generating company or companies, as the case may be, for the purpose of discharging the functions and duties with which it is charged.
(4) Notwithstanding any thing in this section where,--
(a) the transfer scheme involves the transfer of any property or rights to any person or undertaking not wholly owned by the State Government, the scheme shall give effect to the transfer only for fair value to be paid by the transferee to the State Government.
(b) a transaction of any description is effected in pursuance of a transfer scheme, it shall be binding on all persons including third parties and even if such persons, third parties have not consented to it."
19. Section 55 deals with powers to make rules. In exercise of the powers conferred by Sections 23,24 and 55 of the A.P.Reforms Act 1998, the Government of Andhra Pradesh made the rules called as Andhra Pradesh Electricity Reform (Transfer Scheme) Rules 1999 (hereinafter referred to as the Transfer Scheme).
The relevant definitions are extracted as follows:
2(a): "Act" means the Andhra Pradesh Electricity Reform Act, 1998;
(b) "APDISTCOs" means the distribution companies which may be incorporated with the principal object of engaging in the business of distribution and supply of electricity in different areas in the State.
(c) "APGENCO" means Andhra Pradesh Power Generation Corporation Limited, a company established by the Government of Andhra Pradesh with the principal object of engaging in the business of Generation of Electricity,
(d) "APTRANSCO" means the Transmission Corporation of Andhra Pradesh Limited established by the Government of Andhra Pradesh, as envisaged under Section 13 of the Act, with the principal object of engaging in the business of procurement, transmission, distribution and supply of electricity.
(f) "Board' means the Andhra Pradesh State Electricity Board constituted under the Electricity (Supply) Act, 1948.
(g) "effective date of the transfer" means the relevant date notified by an order made by the Government of Andhra Pradesh for effecting transfer of Assets, Liabilities, Proceedings or Personnel to the APGENCO or the APTRANSCO or the APDISTCOs, as the case may be and different effective dates of the transfer may be notified for different transfers.
(i) "Personnel" means workmen, employees, staff and officers of the Board by whatever name called and includes those trainees receiving stipend from the Board including those on deputation to other organizations or institutions.
(m) "Tripartite Agreement" means the applicable Agreements entered into by the State Government, the Board and the concerned Union or Association of the Personnel as listed in Schedule D and as may be modified by the parties to the said agreements from time to time.
Rule 3: Transfer of assets etc. to the State:--(1) On the effective date of the transfer notified for the purpose, all the assets liabilities and Proceedings of the Board shall stand transferred to and vest in the State absolutely and in consideration thereof all loans, subventions and obligations of the Board towards the State shall stand extinguished and cancelled, which consideration shall be in full and final settlement of all claims whatsoever of the Board.
(2) Nothing in Sub-rule (1) shall apply to rights, responsibilities and obligations in respect of the Personnel and Personnel related matter including statutory dues such as salary, wages, gratuity, pension, provident fund, compensation and retirement benefits and the same shall be dealt with in the manner provided under Rule 7 of these Rules.
Rule 5: Transfer of assets, liabilities, etc., by the State :--(1) The assets, liabilities and proceedings forming part of Generation undertaking as set out in Schedule-A shall stand transferred to and vest in APGENCO on the effective date of transfer notified for the purpose without any further act or thing to be done by the state Government or the Board or APGENCO or any other person, subject, however, to the terms and conditions in these rules.
(2) The assets, liabilities and Proceedings forming part of Transmission and Distribution undertaking as set out in Schedule-B shall stand transferred to and vest in APTRANSCO on the effective date of transfer notified for the purpose without any further act or thing to be done by the State Government or the Board or APTRANSCO or any other person subject, however, to the terms and conditions in these rules.
(3) On such transfer and vesting of the assets, liabilities and Proceedings in terms of Sub-rule (1) APGENCO to APTRANSCO, as the case may be, the APGENCO or Sub-rule (2) to or the APTRANSCO, the Transferee, shall be responsible for all contracts, rights, deeds, schemes, bonds, agreements and other instruments of whatever nature to which the Board was initially a party, subsisting or having effect on the effective date of transfer, in the same manner as the Board was liable immediately before the effective date, and the same shall be in force and effect against or in favour of the Transferee and may be enforced effectively as if the Transferee had been a party thereto instead of the Board:
Provided that the proceeds of the 15% redeemable and non-convertible Vidyut Bonds (Series 1/99) issued by the Board shall continue to be received by the Board in the manner specified in the issue documents and retained in the existing no-lien accounts till further orders by the State Government as to their utilization for the objects of the issue.
(4) As consideration for the transfer and vesting of the assets, liabilities and Proceedings to APGENCO or APTRANSCO as mentioned in Sub-rules (1), (2) and (3) of this rule and Schedules A or B as the case may be, the State Government, will be issued Shares and/or instruments as specified in Schedule "A" and Schedule 'B' respectively.
Rule 6: Transfer from APGENCO AND APTRANSCO:--(1) Subject to Rule 7, the State Government may, after consulting APGENC), and by order to be notified as the effective date of transfer for the purpose frame a transfer scheme and require APGENCO to transfer and vest one or more of the Generation Undertakings listed in Schedule-A to other generating company or companies, in such manner and on such terms and conditions as the State Government may specify in the order.
(2) Subject to Rule 7, the State Government may, after consulting APTRANSCO, and by order to be notified as the effective date of transfer for the purpose frame a transfer scheme and, require APTRANSCO to transfer and vest the Distribution Undertakings listed in Schedule-B or division thereof to such APDISTCOS, in such manner and on such terms and conditions as the State Government may specify in the order.
Rule 7: Transfer of Personnel:--(1) The transfer of Personnel, in terms of these rules, shall be subject to the terms and conditions contained in the Act and the applicable Tripartite Agreements as listed in Schedule-D (2) Subject to Sub-rule (1) the personnel on the effective date of transfer notified for the purpose shall stand classified, transferred and allocated to the services of APGENCO or APTRANSCO in the manner specified in Sections 1 and 2 of Schedule-E. (3) On such transfer and subject to the provisions of the Act and other provisions in these rules the personnel shall form part of the services of APGENCO or APTRANSCO, as the case may be, with the status and in the post, scale of pay and seniority being maintained in the same manner as in the Board on the effective date of transfer (4) Subject to Sub-rule (1), the State Government may, after consulting the APGENCO, and by order to be notified as the effective date of transfer for the purpose frame a transfer scheme and require APGENCO (the TRANSFEROR COMPANY) to transfer such of the Personnel as the State Government may specify to other generating company or companies, in such manner and on such terms and conditions as the State Government may specify in the order.
(5) Subject to Sub-rule (1), the State Government may, after consulting the APTRANSCO, and by order to be notified as the effective date of transfer for the purpose frame a transfer scheme and, require APTRANSCO (the TRANSFEROR COMPANY) to transfer such of the Personnel as the State Government may specify to the APDISTCOs, in such manner and on such terms and conditions as the State Government may specify in the order.
(6) The transfer of personnel shall be further subject to the following conditions, namely:--
(a) that the terms and conditions of the services applicable to them on the effective date of the transfer notified for the purpose, shall not in any way be less favourable than or inferior to those applicable to them immediately before the said effective date:
(b) all such personnel shall have continuity of service in all respects;
(c) all benefits of service accrued before the said effective date shall be fully recognized and protected and taken into account for all purposes including the payment of terminal benefits;
(d) Subject to orders that may be passed by the Courts in the Proceedings pending on the said effective date of the transfer in regard to seniority or other matters concerning the service conditions of the Personnel;
(e) Subject to the above, the personnel shall cease to be in the service of the Board or the TRANSFEROR COMPANIES, as the case may be, and shall not assert or claim any benefit of service under the State Government or the Board or the TRANSFEROR COMPANIES, except as provided in the Andhra Pradesh Electricity Reform Act, 1998, these Rules and in the Tripartite Agreements.
(f) All other terms and conditions as specified in the tripartite agreements;
(7) Subject to Sub-rules (1) and (6), the transferee shall frame regulations governing the conditions of service of personnel transferred to the transferee under these rules and till such time, the existing service conditions of the Board shall mutatis mutandis apply.
20. Under the Transfer Scheme Rules 1999, all the assets and liabilities of A.P.State Electricity Board were transferred to the State Government and the obligations of the A.P.State Electricity Board towards the State shall stand extinguished and cancelled and in turn the State Government transferred the assets, liabilities and proceedings forming part of the generation undertaking as set out in Schedule A to APGENCO. The assets, liabilities and proceedings forming part of the transmission and distribution undertaking as set out in Schedule B are transferred to APTRANSCO.
21. Thereafter, Second Transfer Scheme was formulated and in exercise of the powers conferred by Sections 23 and 24 of the Act and Sub-rule (2) of Rule 6, Sub-rule (5) of Rule 1 of Transfer Scheme Rules, State Government issued orders in G.O. Ms. No. 35 Energy (Power III), dated 31-3-2000 for the purpose of providing and giving effect to the transfer of distribution undertakings of the Transmission Corporation to the distribution companies. The said orders are called AP Electricity Reform (transfer of distribution undertakings from A.P.TRANSCO to distribution companies) Order 2000 (hereinafter referred to as "Second Transfer Scheme).
Clauses 6 and 7 of the said order 2000 which are relevant are extracted below:
"6. Assignment of Personnel other than the APDISTCO Workmen:--The personnel other than the APDISTCO Workmen shall continue to work on an "as is where is basis" in the manner specified in the Second Transfer Scheme and the Tripartite Agreements and shall be finally absorbed as per the provisions of the Act. First Transfer Scheme and the Tripartite Agreements. The Tripartite Agreements shall be binding on the APDISTCOs.
7. Pending proceedings :--All the proceedings of whatever nature by or against the APTRANSCO, or against the Board which have been assumed by the APTRANSCO under the First Transfer Scheme, pending on the effective date, shall not abate or discontinue or otherwise in any way be prejudicially affected by reason of any transfer effected under the Second Transfer Scheme. Subject to what is provided in the Second Transfer Scheme, such proceedings may be continued by or against the concerned Transferee, in the same manner and to the same extent as would or might have been continued, prosecuted and/or enforced by or against the APTRANSCO had the transfers specified in the Second Transfer Scheme not been made.
22. As per the said Order, the distribution function and business vested in APTRANSCO is transferred to four distribution companies. The definition to 2(b) and 2(c) of the said Transfer Scheme is extracted as follows:
2(b) "APDISTCO(s)" means, as per the context and usage, all or either of the four companies incorporated under the Companies Act, 1956, to take over the distribution functions and business currently vested in the APTRANSCO, being (i) Eastern Power Distribution Company of Andhra Pradesh Ltd., (herein referred to as "APDISTCO-1"); (ii) Southern Power Distribution Company of Andhra Pradesh Ltd., (herein referred to as "APDISTCO-II) (iii) Central Power Distribution Company of Andhra Pradesh Ltd, (herein referred to as "APDISTCO-III") (iv) Northern Power Distribution Company of Andhra Pradesh Ltd., (herein referred to as "APDISTCO-IV") 2(c) "APDISTCO Workmen" means such of the Workmen who on the effective date were working exclusively or primarily in the particular Distribution Undertaking for Area-I, Area-II, Area-Ill or Area-IV as the case may be and, shall include the Workmen in the Transmission Lines and Sub-Stations, Telecom Offices and such other Workmen who, on the effective date, were working in other wings but whose lien/or seniority was, being maintained with a Distribution Undertaking.
2(p) "Personnel" means workmen, employees, staff and officers of the APTRANSCO by whatever name called and includes those trainees receiving stipend from the APTRANSCO including those on deputation to other organization or institutions.
2(t) "Transferee" means APDISTCO-I, APDISTCO-II, APDISTCO-III and/or APDISTCO-IV, as the case may be.
2(w) "Tripartite Agreements" means the agreements and individually each of them, as listed in Schedule "D" to the First Transfer Scheme entered into by the State Government, the Board and the concerned union or association of the Personnel. These Agreements had been entered into during the period of August, 1997 till the end of April, 1998 with the object of protecting the interests of the employees who were members of the concerned union/or association on the respective dates of the concerned Tripartite Agreement."
"Rule 3: Transfer of Distribution Undertakings:
3.1 Transfer of Distribution Undertaking to APDISTCO-I (1) On and from the effective date, without any further act(s) or thing(s) to be done by the State Government, APTRANSCO, APDISTCOs, the Personnel, or any other person, the Distribution Undertaking, related to Area-1 as specified in Schedule "B" shall stand transferred to APDISTCO-I. (2) In consideration of the transfer of the Distribution Undertaking related to Area-1 by the APTRANSCO to the APDISTCO-I in terms of this Second Transfer Scheme, the APDISTCO-I shall issue and allot equity shares and/or instruments to the APTRANSCO as specified in Schedule "B".
(3) The provisional balance sheet of the APDISTCO-I as on the effective date is attached herewith as Part II of Schedule "B".
(4) The allocation, transfer and/or assignment of Personnel to the APDISTCO-I, has been dealt with in Clause 7 as specified below.
Rule 3.2: Transfer of Distribution Undertaking to APDISTCO-II:
(1) On and from the effective date, without any further act(s) or thing(s) to be done by the State Government, the APTRANSCO, the APDISTCOs, the personnel, or any other person, the Distribution Undertaking, related to Area-II as specified in Schedule "C" shall stand transferred to the APDISTCO-II.
(2) In consideration of the transfer of the Distribution Undertaking of Area-II by the APTRANSCO to the APDISTCO-II in terms of this Second Transfer Scheme, the APDISTCO-II shall issue and allot equity shares and/ or instruments ' to the APTRANSCO as specified in Schedule "C".
(3) The provisional balance sheet of the APDISTCO-II as on the effective date is attached herewith as Part II of Schedule "B".
(4) The allocation, transfer and/or assignment of Personnel to the APTRANSCO-II has been dealt with in Clause 7 as specified below.
Rule 3.3: Transfer of Distribution Undertaking to APDISTCO-III (1) On and from the effective date, without any further act(s) or thing(s) to be done by the State Government, the APTRANSCO, the APDISTCOs, the Personnel, or any other person, the Distribution Undertaking, related to Area-II as specified in Schedule "D" shall stand transferred to the APDISTCO-III.
(2) In consideration of the transfer of the Distribution Undertaking of Area-III by the APTRANSCO to the APDISTCO-III in terms of this Second Transfer Scheme, the APDISTCO-III shall issue and allot equity shares and/or instruments to APTRANSCO as specified in Schedule "E".
(3) The provisional balance sheet of the APDISTCO-III as on the effective date is attached herewith as Part II of Schedule "D".
(4) The allocation, transfer and/or assignment of Personnel to the APDISTCO-III has been dealt with in Clause 7 as specified below.
Rule 3.4: Transfer of Distribution Undertaking to APDISTCO-IV (1) On and from the effective date, without any further act(s) or thing(s) to be done by the State Government, the APTRANSCO, the APDISTCOs, the Personnel or any other person, the Distribution Undertaking, related to Area-IV as specified in Schedule "E" shall stand transferred to the APDISTCO-IV.
(2) In consideration of the transfer of the Distribution Undertaking of Area-IV by the APTRANSCO to be APDISTCO-IV in terms of this second Transfer Scheme, the APDISTCO-IV shall issue and allot equity shares and/or instruments to the APTRANSCO as specified in Schedule "E".
(3) The provisional balance sheet of the APDISTCO-IV as on the effective date is attached herewith as Part II of Schedule "E".
(4) The allocation, transfer and/or assignment of Personnel to the APDISTCO-IV has been dealt with in Clause 7 as specified below.
Rule 4: Retention of other Undertaking by APTRANSCO The APTRANSCO has not and shall not be deemed to have transferred, and shall continue to hold, all rights and interests in and bear all obligations and liabilities, including all-assets, liabilities, proceedings and Personnel, relating to all the APTRANSCO Undertaking(s) other than the Distribution Undertakings transferred to the APDISTCO-I, the APDISTCO-II, the APDISTCO-III and the APDISTCO- IV respectively, as provided above. The provisional balance sheet of the APTRANSCO as on the effective date is attached herewith as Schedule "F".
Rule 5: Substitution of APTRANSCO BY APDISTCOs On the transfer and vesting of the Distribution Undertakings to the APDISTCOs in terms of Clause 3 of the Second Transfer Scheme, the Transferee shall be responsible for all contracts, rights, deeds, schemes, bonds, agreements and other instruments of whatever nature to which the APTRANSCO was initially a party, subsisting or having effect on the effective date in the same manner as the APTRANSCO was liable immediately before the effective date, and the same shall be in force and effect against or in favour of the Transferee and may be enforced effectively as if the Transferee had been a party thereto instead of the APTRANSCO.
Rule 7. Transfer of APDISTCO Workmen 7.1: Transfer of the APDISTCO Workmen and conditions of transfer.
(1) The transfer of the APDISTCO Workmen in terms of the Second Transfer Scheme shall be subject to the terms and conditions contained in the Act and the Tripartite Agreements as listed in Schedule D of the First Transfer Scheme.
(2) Subject to Sub-clause (1) above, on the effective date, the APDISTCO Workmen shall stand classified, transferred and allocated, on "as is where is basis", to the services of the APDISTCO concerned, in the manner specified in Part III of the applicable Schedule "B", "C", "D" or "E" as the case may be with a clear understanding that the APDISTCOs will accept the responsibilities under the Tripartite Agreements.
(3) Upon such transfer and subject to the provisions of the Act and other provisions in the Second Transfer Scheme, the APDISTCO Workmen shall form part of the services of the concerned the APDISTCO, with the status and in the post, scale of pay and seniority being maintained in the same manner as in the APTRANSCO on the effective date, without any further act or thing to be done by the State Government, the APTRANSCO, the APDISTCOs or Workmen, as the case may be and consistent with the Tripartite Agreements. All the actions of the APDISTCOs shall be consistent with the Tripartite Agreements. In the event of non-adherence to the terms of the Tripartite Agreements by any of the APDISTCOs, the guarantees as provided by the State Government and the APTRANSCO under the Tripartite Agreements shall be honoured by the State Government and the APTRANSCO.
(4) The transfer of the APDISTCO Workmen shall be further subject to the following conditions namely:
(a) that they shall be entitled to terms and conditions of service and benefits that are at least on part to those that were applicable to them on the effective date and these shall not in any way be less favourable than or inferior to those applicable to them immediately before the effective date. All the existing settlements and agreements entered into with the employee unions/or associations, including the Tripartite Agreements, shall be honoured by the Transferees;
(b) all such APDISTCO Workmen shall have continuity of service in all respects, including services rendered into Board and or the APTRANSCO.
(c) All benefits of service accrued before the effective date shall be fully recognized and protected and taken into account for all purposes including the payment of terminal benefits;
(d) Subject to orders that may be passed by the Courts in the proceedings pending on the effective date in regard to seniority or other matter concerning the service conditions of the APDISTCO Workmen;
(e) Subject to the above, the APDISTCO Workmen shall become employees of the concerned Transferee and shall not claim any benefit of service under the State Government or the Board or the APTRANSCO, except as provided in the Act, the Second Transfer Scheme and the Tripartite Agreements.
(f) Consistent with the all other terms and conditions as specified in the Tripartite Agreements.
(g) The APTRANSCO's and Transferee's role with respect to employment related liabilities of the APDISTCO Workmen shall be as follows:
(i) in respect of all statutory and other schemes and employment related matters including the provident fund, gratuity fund, pension and any other superannuation fund or any other special fund created or existing for the benefit of the Personnel, accrued for and/or attributable to the period of service of the APDISTCO workmen with the Transferee commending from the effective date, shall be the responsibility of the relevant Transferee and to this extent, the Transferee shall stand substituted for the APTRANSCO, for all purposes and all the rights, powers and obligations of the APTRANSCO in relation to any and all such matters shall become those of the Transferee concerned and the services of the personnel shall be treated as having been continuous for the purpose of the application of this Sub-clause (6) each of the Transferees shall, within a period not exceeding 12 months after the effective date, establish appropriate trusts for provident fund, pension and gratuity in accordance with applicable law.
(ii) In respect of all statutory and other schemes and employment related matters including the provident fund, gratuity fund, pension and any other superannuation fund or any other special fund created or existing for the benefit of the Personnel, accrued for and/or attributable to the period of service of the APDISTCO Workmen with the APTRANSCO for the "Relevant Period" and, the expression "Relevant Period" shall mean the period commencing from the effective date of the First Transfer Scheme up to the effective date shall be the responsibility of the APTRANSCO and to this extent, the APTRANSCO shall continue to retain all liabilities.
(iii) All statutory and other schemes and employment related matters including the provident fund, gratuity fund, pension and any other superannuation fund or any other special fund created or existing for the benefit of the Personnel accrued for and/ or attributable to the period of service of the APDISTCO Workmen with the Board for the "Board Period" and the expression "Board period" shall mean the period prior to the effective date of the First Transfer Scheme have been allocated to and assumed by APGENCO and to this extent, APGENCO shall continue to retain all such liabilities.
(iv) The APGENCO and the APTRANSCO, together with their respective pension, gratuity and provident fund trusts, shall enter into appropriate arrangements with each of the Transferees and their respective pension, gratuity and provident fund trusts, to effectively implement and comply with the mechanism set out above, including establishing transparent mechanism for timely reimbursement of funds from the APGENCO and the APTRANSCO to the concerned Transferee, so as to ensure that the Personnel receive their terminal benefits, in a timely manner when they become due.
23. Thus pursuant to the Second Transfer Scheme, the service conditions of all the employees of erstwhile APSEB/ TRANSCO are to be protected in the transferee companies but they will cease to be employees of APSEB/AP TRANSCO and will be treated as employees of the respective transferee companies.
24. Pursuant to the said transfer policy and for the allotment of employees of erstwhile APSEB into the new entities the Government considered the views of Task Force in the matter that irrespective of time limit for privatization, finalization of options would be necessary to give the DISTCOMs complete autonomy. Therefore, it was decided to call for the options from the employees and accordingly the TRANSCO has prepared a scheme for carrying out the exercise of options as per the clearance accorded by the Government to the TRANSCO to proceed with all necessary actions for allotment of the staff to different companies by following the due process, the High Level Committee was constituted. The TRANSCO issued an order TOO R.D.No. 260 dated 2-11-2001 constituting a High Level Committee for finalization of the options of the employees of the erstwhile APSEB for absorption into the successor entities i.e. A.P.TRANSCO, A.P.GENCO, and four distribution companies. The High Level Committee is empowered to call for the options as per the criteria laid down in the tripartite agreement to allot them to the different companies based on their option keeping in view the seniority-cum-work experience and availability of the posts in the respective entities. The options would be sought from all the eligible employees and the existing terms and conditions of the employees would continue till allotment of the personnel into the respective companies. After constituting High Level Committee the TRANSCO issued a circular dated 27-4-2002 seeking options from the employees. By the said circular the employees were invited to exercise their options for final absorption in any one of the corporations namely APGENCO, APTRANSCO, APEPDCL, APSPDCL, APCPDCL or APNPDCL in order of their preference in the enclosed format in annexure I. It is also made clear that High Level Committee has been constituted to finalize the options exercised for all the eligible employees by TRANSCO. The employees who are eligible for options are Class 1 and Class 2 employees of erstwhile APSEB (except those in medical, educational and security services and except those employees who are on deputation to APSEB). Class 2 employees with subject wide seniority in engineering service of erstwhile APSEB and provincial employees belonging to Class 3 and Class 4 in P&G accounts and general services at headquarters. The persons who are recruited before 1st February, 1999 would be eligible to exercise the options. The allotment will be finalized by the High Level Committee on the criteria laid down under the Tripartite Agreement based on the seniority, relevant work experience and sanctioned posts in the respective companies. The option criteria and process to be followed for final absorption has been explained in annexure II. The above criteria and the process to be followed for final absorption has been explained in annexure III. The cut off date for applying the above criteria has been fixed as 1st February, 2002. Any eligible employee who has been promoted after 1-1-2002 and joined the promoted cadre shall exercise the option in the promoted cadre. The cadre wise break up of posts available and applicable to them is indicated in annexure IV enabling for final absorption. It is stated that 40 days time was given to exercise their options. The High Level Committee on receipt of the option forms would apply the criteria mentioned in the said circular in allotting employees to the respective companies. The eligible employees who do not exercise options, whose form found unsigned, whose form is not received by the last date would be considered for final absorption by the High Level Committee on the basis of option criteria after completing the allotment of employees who have exercised options. Any clarification in respect of options criteria, interpretation, decision of the High Level Committee would be final and binding. Keeping in view the aforesaid criteria the employees have to fill the preference form as per format in annexure I indicating their order of preference to be allotted to the respective companies in the preferential manner in six companies. They cannot prefer same preference for more than one company. Any form received with incomplete preference will be considered for absorption at the sole discretion of the High Level Committee. In case no preference is indicated the absorption will be finalized at the sole discretion of the High Level Committee. As per annexure III detailed criteria has been prescribed to process the options for their absorption based on the length of the service, seniority, score, relevant work experience etc. The employees are required to exercise their option for final absorption in any one of the six companies. The process for finalization would be specific to a particular service/branch. The step by step process for final absorption is also prescribed. The employees are required to indicate their options in order of preference for respective companies as per format in annexure-I. Based on the completed option forms and an option score would be calculated for employee. Illustration was also given in annexure II for arriving at conclusion of the above score. Option score would be sum of the length of the service and relevant work experience across the generation, transmission and distribution functions respectively. For the purpose of calculation the distribution score of an employee would remain the same irrespective of distribution company in which he had experience. The calculation process would be done using software. The seniority would have three scores i.e., for generation, transmission and distribution which would be used for determining the final allocation. The final allocation of options would depend upon the sanctioned posts in the relevant cadre or branch in the companies. The employee who has secured higher option in any company would be considered first for absorption and through an iterative process, their absorptions based on the seniority as laid down in the order would be completed till the available posts in the companies are filled up completely. It was mentioned that highest preference would be given due consideration as per the option process.
25. In annexure III, it is stated that the options will be finalized based on their seniority in the cadre as per the seniority list. Therefore, the senior most employee at a particular level would get the first allocation on the basis of his first preference and so on. Some of the employees unions/associations requested for extension of time. for receiving the above forms from the eligible employees, their request was acceded to and the date was extended up to 10-6-2002 to submit option forms by the eligible employees. The option forms were scrutinized and processed by the High Level Committee. The High Level Committee derived option score keeping in view of the length of the service work experience, availability of the posts, with reference to their first options and wherever the respective employees score highest score for their allotment as per their first option. The allotment under option exercised was intimated to the employees individually vide letters dated 6-6-2002. One of such letter is extracted as follows:
"Transmission Corporation of Andhra Pradesh Limited (APTRANSCO), Vidyut Soudha, Hyderabad-500082.
Allotment under option exercise July, 6th 2002 To 1059110 MYANA MALLESH, Junior Personnel Officer Corporate Office/APSPDCL APSPDCL Sir/Madam Sub: Your options for final absorption-Allotment of employees to successors companies of APSEB-Reg.
Ref.1: Circular for seeking options under the Tripartite Agreements
2. Options exercised by Sri/Smt. M. MALLESH, Personnel Officer You had exercised your options for final absorption in any one of the companies-APGENCO, APTRANSCO, APCPDCL, APSPDCL, or APNPDCL in the order of your preference.
The High Level Committee considered your options and is pleased to inform you that you have been allotted to APTRANSCO on your 1st preference.
Sd/-
Additional Secretary, APTRANSCO"
It is clear from the said letter that M. Mallesh, Junior Personnel Officer exercised his first option in favour of A.P.TRANSCO and he was allotted as per the first option preference to APTRANSCO.
26. In respect of the employees whose first option was not considered were communicated by different letters dated 6-7-2002, and one of the said letter is extracted as follows:
"Transmission Corporation of Andhra Pradesh Limited (APTRANSCO), Vidyut Soudha, Hyderabad-500082 Allotment under option exercise July, 6th 2002 To 1027084 PANNALA PRABHAKARA SHASTRY JUNIOR PERSONNEL OFFICER, CORPORATE OFFICE/APSPDCL APSPDCL Sir/Madam, Sub: Your options for final absorption-Allotment of employees to successor companies of APSEB-Reg.
Ref. 1: Circular for seeking options under the Tripartite Agreements
2. Options exercised by Sri/Smt. P. PRABHAKARA SASTRY, Junior Personnel Officer.
You had exercised your options for final absorption in any one of the companies-APGENCO, APTRANSCO, APCPDCL, APEPDCL, APSPDCL or APNPDCL in the order of your preference.
The High Level Committee considered your options and is pleased to inform you that you have been allotted to APEPDCL.
If you wish to make any representation with respect to your allotment you may do so not later than July, 25, 2002 to the Convener of the High Level Committee i.e., Additional Secretary. Your representation should be accompanied by the supporting documents/evidence, if any, justifying your representation.
All such representations received on or before July 25, 2002 shall be considered on merit by the High Level Committee and the decision of the High Level Committee shall be final and binding.
Sd/-
Additional Secretary, APTRANSCO"
27. It is clear from the said letter that in respect of the employees whose cases could not be considered for their allotment as per their first option preference were given an opportunity to make representation with respect to their allotment before 25-7-2002 to the Convener of the High Level Committee accompanied by supporting documents/evidence, if any, justifying their representation. There are two types of intimation of allotment option exercised and the allotment of company as per their first preference is different from the intimation of letters of allotment under option exercised to the persons whose cases were not considered on the basis of first preference. The persons who have been allotted to the company as per their first preference were not at all given any opportunity to make a representation. Such of those employees whose cases could not be considered based on the first preferential basis alone were given an opportunity to make representation.
28. The High Level Committee considered the cases of such of those employees who were given opportunity to make representations as their first option company was not allotted vide its meeting held on 6-8-2002. The final list of the employees has been finally transferred and allotted to the respective companies. Consequently, the employees who were allotted to the respective companies stand absorbed with effect from 17-8-2002. The employees so absorbed will cease to be employees of their erstwhile company, that is to say, they will cease to be employees of the APSEB or main successor entity to APSEB i.e., APTRANSCO and shall henceforth be the employees of the transferee company i.e., APDECL or any other company as the case may be. Consequently, the services of employees who were allotted to the respective companies are transferred to the transferee companies from 17-8-2002. It is also made clear that if any of the employee retained without relieving him to the transferee company beyond 17-8-2002, he will be deemed to be as on deputation subject to the consent from the respective Chairman and Managing Director of the Companies. The promotions due to the employees retiring on 31-8-2002 may be given by the transferee company. The disciplinary cases pending, if any, will also be transmitted to the transferee companies. The conditions of the tripartite agreements, rules and regulations that were existing in APSEB shall continue to be applicable to the successor company also. Successor companies are required to frame their own regulations to govern the conditions of the service subject to the conditions laid down under the A.P. Electricity Reforms Act, Transfer Schemes framed thereunder and tripartite agreements. The terminal benefits payable to employees and any accumulations standing to the credit of those employees shall be transferred to the transferee company. The final orders issued to the individual employees vide TOO Ms. Numbers make it very clear that the High Level Committee constituted for finalization of options of the employees of erstwhile APSEB for absorption in the successor entities are considered, and the High Level Committee considered the options of eligible employees as per their option preference keeping in view the guidelines issued in the circular and they are allotted for final absorption in the company and after the said allotment he/she ceases to be employee of the erstwhile APSEB and shall be employee of the transferee company only. The different allotment orders dated 13-8-2002 also make it clear that they were transferred to the transferee company with effect from 17-8-2002 and they will cease to be the employees of the APSEB and will be treated as permanent employees of the transferee company.
29. After absorption of services of the employees on transfer from one company to another company, certain requests have been made by some of the employees for transfer from one company to another company and in that regard the transmission corporation issued order in TOO Ms.No. 244 dated 13-12-2002 stating that after absorption of service of an employee of a company seeking transfer to another company may be considered on mutual consent of the employees of the concerned companies subject to the availability of the post in the category or grade on the condition that the employee forfeits his lien and seniority on a permanent or officiating post in the category or grade in the class of service in the company in which he belongs and accept the last rank in the seniority fixed for the category or grade in the class of service or different service in the other company (transferee company) with reference to the date of his appointment in the transferee company.
30. Certain guidelines were also issued in TOO Ms. No. 279 dated 27-1-2003 to provide for adoption of service of employees on foreign service subject to certain conditions that the period of adoption shall not exceed five years and the deputation of foreign service shall be subject to availability of sanctioned posts in the same category and the deputation of employee on foreign service shall be subject to consultation with consent of the foreign employee and the company, which the employee is permanently employed. TOO Ms.No. 39 dated 30-4-2003 was issued amending the earlier guidelines that the candidates were allotted finally as per the option process to a particular company can be considered for his transfer to other company subject to the condition that he will loose his seniority in the former company and he becomes the junior most and accept last rank in the seniority fixed for that category or grade. Even, the transfers were also put an end by order dated TOO Ms.No. 130 dated 23-8-1963 stating that the absorption of services of an employee on transfer from one company to another company on request may be considered upto 31-1-2004 only. Thus, wherever the request for transfers were considered their seniority in the former company is not protected and they become the junior most in that particular cadre in the transferee company. Therefore, all those different orders have nothing to do with the Second Transfer Scheme and there is no deviation in any way while allotting the personnel as per the option criteria.
31. The scheme of the Act, Transfer Schemes, Tripartite Agreements and the circular issued seeking for options make it clear that their existing service conditions, monetary benefits and continuance in future in same cadre without retrenching is only guaranteed by the State Government and APTRANSCO and after registering different distribution companies under the Companies Act the respective personnel were transferred as per the criteria prescribed in the circular seeking for option and after their allotment in the respective companies, they will cease to be the employees of erstwhile APSEB and become the permanent employees of the transferee company. As per Rule 7(2) of Second Transfer Scheme, the personnel other than the APDISTCO workmen shall continue to work on "as is where is basis" and shall be finally absorbed as per the provisions of the Act, First Transfer Scheme and as specified in tripartite agreement. The transfer of AP DISTCO workmen are regulated in terms of Regulation 7.1 of the Second Transfer Scheme. The tripartite agreement entered with the unions/ associations prescribed the terms and conditions of the service of employees appointed on transfer from APSEB to the corporate entities. As per Clause 4 K of the settlement regulation all existing employees may be absorbed into the corporate entities which are the successor bodies to the APSEB and the employees will continue on "as is where is basis". There will be a period of transition which shall not exceed five years. During the period of transition option of the employees will be sought for their absorption in the successor entities. As per Clause 4K tripartite agreements entered with the Junior Accounts Officers' Association, Engineers' Association, Diploma Engineers' Association, it is specified that seniority-cum-work experience will be the basis for absorption of personnel in the successor entities. In Clause 4G of the agreement it was agreed that period of service of the employees under the Board and under the corporate entities will be treated as continuous service for the purpose of service benefits and terminal benefits payable to the personnel. It was also specified in Clause 4F that the benefits accrued to the employees as on the date of restructuring shall be promoted and shall be given full effect to. There is no complaint that existing service conditions were not protected, except the complaint that the common seniority list of APSEB shall be maintained. The perusal of tripartite agreement and relevant rules and regulations and the Act do not provide the continuance of common seniority list to be maintained even after their absorption finally in the respective transferee companies. There is no basis for the said contention of the learned Counsel appearing for the petitioners. The said contention only defeats the Scheme of the Act, transfer policy. To finalize the options of the employees, the circular dated 27-4-2002 was communicated to the individual employees who are eligible for options. Employees eligible for options were also indicated in the circular dated 27-4-2002 along with circulars of the details were meticulously furnished in the relevant annexure giving full and detailed particulars for considering option criteria. The petitioners having gone through the entire circular and the relevant matters which were furnished to each one of them have exercised their options keeping their eyes wide open and in fact, most of the cases of the petitioners have been considered and they were allotted as per their first option preference only.
32. The learned Counsel for the respondents have placed relevant records in support of their contention that the High Level Committee considered the length of the service in the APSEB, scores have been prescribed and the work experience was calculated by distributing their work experience into generation, transmission, distribution, corporate functions as per their actual posting from the time they entered in the office category has been taken. For that purpose individual employees who were in the office category were required to give their bio-data and the said bio-data furnished by the individual employees was countersigned by the unit head/paid officer, after verifying the service register of the individual employees. In terms of the file and service register available with the company the individual option score with reference to the seniority and work experience has been arrived at by taking the sum of the length of the service and relevant work experience. The calculation of the scores was done by using a software. The score of all the individual employees were matched with options exercised by them. The option scores were based on the work experience of the GENCO, TRANSCO and distribution companies. All the option scores were analyzed with reference to number of posts available in the respective companies. In respect of each individual category of officers maximum and minimum levels of option scores have been arrived at keeping in view post available in the cadre in the six companies, wherever, the employee has opted for the first option and which is within the maximum and minimum option scores arrived at by using the said software, they were allotted to their first preference/first option and the same were communicated to the individual employees vide letter dated 6-7-2002 in pursuance of the decision taken by the High Level Committee which met on 5-7-2002. Therefore, it is incorrect to say that the High Level Committee considered only the first option criteria without preference to seniority, work experience and availability of the posts. The High Level Committee considered the criteria as indicated in the circular and 94% of the employees in the engineering service were allotted to the companies of their first choice option/ preference. The employees in respect of the account services were considered in their first option. 89.1% of the account services and 90.4% in P & G services were allotted to the company of their first choice/preference option. The allotment letters were communicated on 6-7-2002 in cases of the employees who were allotted to the companies as per their first option.
33. In respect of other employees who are allotted as per their preference 2 to 6 options keeping in view of the scores and posts available in respective companies, the allotment was also made but however, they were given another opportunity to make representations before 25-7-2002 with supporting documents/evidence, if any, in justifying their allotment to other companies for consideration by the High Level Committee. Representations filed with supporting documents have been considered by the High Level Committee in the meeting held on 6-8-2002 keeping in view the categories not allotted in the initial round, score review cases, spouse cases, single lady cases, nearing retirement cases, medical cases and domestic and other representations and final allotment was made to the respective companies vide letter dated 9-8-2002. The list of employees finally allotted to the respective companies were also communicated to the employees as well as respective companies specifically informing them that they were stand finally absorbed in the respective companies with effect from 17-8-2002. Therefore, the personnel retained in the non-allotted company were treated as on deputation only. The procedure adopted for allotment in respect of engineering services, each officer's option score vis-avis preference have been tabulated and officers allotment preference was also tabulated. While making allotment of employees to six respective companies, number of vacancies available has been taken into consideration, the length of the service, and work experience in the respective companies was also taken into consideration in respect of respective services as per the criteria indicated in the annexure to the option letter dated 27-4-2002 and communicated the same to the respective companies and the employees vide TOO Rs. 160 and 161 both dated 13-8-2002. None of the employees have challenged the final allotment letters. The only grievance is with regard to the non consideration of the representation made for the allotment in cases of the employees whose options were considered and allotted as per the first option preference. The perusal of the option letter goes to show that the decision of the High Level Committee is final and binding including the option criteria and option process. The challenge is only for not considering the revised options but in fact not with reference to the procedure adopted by the High Level Committee. No foundation has been laid down to challenge the procedure adopted by High Level Committee, in fact, the record goes to show that the High Level Committee considered the option score based on the length of service, experience, availability of the vacancies and their first option preference. Therefore, it is incorrect to say that the High Level Committee totally ignored the relevant factors of length of seniority, experience etc., but only considered the first option. Therefore, I am of the view that absolutely there are no merits in respect of the contentions advanced by Sri Sharat Kumar, the learned Counsel appearing for the first batch of writ petitions and all those writ petitions are liable to be dismissed.
34. The other writ petitions in W.P. Nos. 500 of 2003 and batch are filed in which Sri K. Vasudeva Reddy is appearing for the petitioners.
It is stated that the petitioners are entitled for promotion on the basis of the combined list of the then APSEB. The Electricity Reforms Act, Rules, and Tripartite Agreements do not protect the effect of promotions of the employees allotted to the different companies on the basis of combined seniority list of the then APSEB. As on the formulation of the Corporations, the employees will continue on "as is where is basis" and their services would be maintained at the main successor entity and they would be treated as on deputation on the other successor entity. Period of the transition shall not exceed five years and within the period of transition it was agreed to invite options for absorption into the successor entities. It was also agreed that during the transition period and till the finalization of the options, the cadre management will be made by the main successor entities. It was provided that only during the transition period, and upto the finalization of the options, the employees cadre management will be made by the main successor entity in terms of Section 24 of the Reforms Act. The transfer of personnel was made as per the terms and conditions determined in accordance with the Transfer Schemes first and second, and keeping in view the terms and conditions of the tripartite agreement. Rule 7 of the Transfer Scheme deals with transfer of the personnel. As per Rule 7(3) employees on transfer shall form part of services of APGENCO or APTRANSCO, as the case may be, with the status and in the post, scale of pay and seniority being maintained in the same manner as in the Board on the effective date of transfer. As per Rule 7(6)E of Transfer scheme, the personnel shall cease to be in the service of the Board or transferor company, all the employees shall be governed by the Rules and Regulations framed by the transferee company. The effective date of transfer is 17-8-2002 and from that date onwards, the employees cease to be the employees of APSEB/ APTRANSCO, the main successor entity and they stand allotted to the respective companies in terms of final allotment letter dated 13-8-2002. From 17-8-2002, the employees shall be treated as allotted to the company which they have been allotted and therefore, the persons whoever is working in other than the company allotted, will be treated on deputation in the company in which they are working. The service of the persons working in the other allotted companies shall be treated as working on deputation only and their seniority would be maintained in the allotted company alone. The combined seniority list of APSEB allotted to the main successor A.P.TRANSCO, ceases to exist with effect from 17-8-2002 and the employees have been communicated in the seniority list in the respective cadre in the respective corporations to which they were allotted and their entitlement to the said seniority for the purpose of promotion to the higher cadre. Therefore, they cannot claim any promotion based on the combined seniority list of APSEB. Clause 4 of the tripartite agreement also does not provide for maintenance of the combined seniority list and its adoption for promotion by the respective companies after final absorption. The seniority list was drawn company-wide in the same manner as was contained in the erstwhile APSEB/APTRANSCO. The employees allotted to the respective companies got promotion from one cadre to another cadre on the basis of the vacancies which have arisen in the higher cadre on the basis of inter se seniority among the employees allotted to the respective companies. I do not see any provision in the tripartite agreement or in the Transfer Scheme or the Act that the employees allotted to one company are eligible for promotion to other companies. The scheme of allotment is only to ensure that each employee is allotted to a respective company and consequent on the allotment, their services shall be confined in the respective companies only and they cannot claim promotion in the other companies on the basis of the then combined seniority list. Therefore, I am of the opinion that the combined seniority list ceases to exist after the allotment of employees to the respective companies. None of the employees have challenged their allotment to the respective companies. Once they stand allotted to the respective companies, they cannot claim for promotion in the other company on par with their colleagues who got promotion in other companies. The question of creating additional posts in the company to which they have been allotted also does not arise in order to promote them on par with their colleagues who got promotion in other companies. If any posts are vacant to promote them, they are entitled for promotion as per the seniority in the company in which they are working, but they cannot compare the promotions that were effected in other companies based on the combined seniority list of APSEB. Once the options are treated as final, the employees cease to exist in the erstwhile APSEB or main successor entity i.e., APTRANSCO. Any promotion depends upon the creation of the post, availability of the posts to be filled up either by promotion or by any other formation. It is true that some of the juniors in other companies were given promotions.
35. It is the contention of the learned Counsel appearing for the respondents in which the petitioners were allotted that there is no post to promote them and therefore, the petitioners cannot be given promotion as there are no posts available for such promotion. The petitioners shall be treated employees of the allotted companies alone and the combined seniority list ceases to exist and therefore, there is no basis whatsoever claiming the promotion based on the combined seniority list. The petitioners ought to have taken into consideration the prospective promotions that may take place in the respective companies while exercising their options. Once the option is exercised and the allotment is made based on the criteria in the option letter, they cannot have any grievance later on, more so, when their colleagues got promoted in other companies. The promotions and creation of posts depend upon the collective efficiency and the management of the respective companies. The employees working in one particular company cannot compare with efficiency and the promotions that take place in some other companies. Each and every company is an independent entity and separately registered under the Companies Act.
36. It is aptly relevant to quote Para 7 of the judgment of the Supreme Court delivered by the Hon'ble Justice Mr. V.R. Krishna Iyer (as he then was) in the case of Tamil Nadu Education Department, Ministerial and General Subordinate Services Association v. State of Tamil Nadu, .
"In Service jurisprudence integration is a complicated administrative problem where, in doing broad justice to many, some bruise to a few cannot be ruled out. Some play in the joints, even some wobbling, must be left to Government without fussy forensic monitoring, since the administration has been entrusted by the Constitution to the Executive, not to the Court. All life, including administrative life, involves experiment, trial and error, but within the leading strings of fundamental rights, and absent unconstitutional 'excesses', judicial correction is not right. Under Article 32, this Court is the constitutional sentinel, not the national ombudsman. We need an ombudsman but the Court cannot make do."
37. I am of the opinion that as per the jurisdictional limitations for the review of the administrative decision, this Court cannot analyze such minutiae to fault with the Transfer Schemes and declare the final allotments made by the High Level Committee. There is no foundation laid by the learned Counsel appearing for the petitioners to demonstrate that the High Level Committee did not consider the criteria as stipulated in the transfer letter, and on the other hand, it goes to show that the transfer committee has taken the criteria strictly as laid down in the option letter by taking into consideration the length of service, work experience, availability of the posts etc., coupled with the employees preference opted by them. The seniority and the length of service, once the final allotment is made as per the Transfer Schemes, is not static but it is dynamic and I do not see any arbitrariness, unreasonableness in the process of consideration of options by the High Level Committee. The Court cannot declare the decision of High Level Committee based on Transfer Schemes, tripartite agreements and the option letter merely because on the allegations of non-consideration of the seniority length of service, work experience etc., without there being any foundation laid by them to prove their contentions.
38. Life is sometimes contradicted even inconsistency is not always the virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factors fouls. It is not possible to maintain the length of the service based on the common seniority list of erstwhile APSEB, which is not in force which already ceases to exist. The decision cited by Mr. Sharat Kumar in the case of Sri Bhagwandas v. Indian Council of Agricultural Research and Ors., , has no application to the facts of the case as the said case relates to the promotees to the post of Assistants in the recognized Council of Agricultural Research and direct recruits in the same department. There cannot be any dispute that the post earmarked to the direct recruits cannot be accommodated to the promotees and the ratio of the posts have to be maintained earmarked for the promotees and direct recruits.
39. Therefore, I am of the opinion that the petitioners are not entitled either for retention or for consideration of their revised options to allow them in other companies other than the company to which they were allotted as per the criteria based on the first preference exercised by them.
40. Pursuant to the interim orders of this Court, the petitioners are continued in other companies other than to which they were allotted and also got promotions subject to the result of the writ petitions. As I have taken a view that the petitioners are not entitled to be treated as employees in the companies in which they were not allotted and their services shall be treated on deputation only and any promotion given pursuant to the interim directions will not enure any right in their favour. They have to go back to their allotted company only and their seniority will have to be protected based on the original final allotment option criteria.
41. For the aforesaid reasons, I do not see any merits in the writ petitions and the same are liable to be dismissed. All the writ petitions are accordingly dismissed. No order as to cost.