Andhra HC (Pre-Telangana)
Devarakonda Madhusudhana Rao And ... vs B. Madhusudana Rao And Others on 18 August, 2001
Equivalent citations: 2001(5)ALD554, 2002(1)ALT173
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, C.J.
1. The Andhra Pradesh State Electricity Board is an authority in terms in Article 12 of the Constitution of India. It is expected of a State to see that industrial peace is maintained and inter se dispute amongst the employees is as far as possible avoided. The instant case depicts a sorry state of affairs as to how the Board had been taking different stands at different stages in the matters of administration.
2. The appellants were originally the employees in the Sileru Hydro Electric Project. A large scale retrenchment of personnel had been effected in the said Project. The Board has issued instructions to all the Superintending Engineers including S.E., Vijayawada Thermal Power Station not to make any recruitments directly under them as the other personnel from the other units like Lower Sileru Hydro Electric Project have to be accommodated. The said Power Station was treated as a unit by amendment to service regulations in B.P. Ms. No. 1128 dated 24-10-1989 and the Board Memo dated 29-11-1989. The action on the part of the Board was challenged, but the same had been upheld. Negotiations were held between the Union and the Board whereupon an agreement was arrived at that despite the fact that the Board had imposed total ban on filling up existing vacancies, they would be accommodated in other circles upon duly retaining their lien and seniority in their parent circle -Lower Sileru Hydro Electric Project. On 28-5-1975, a memorandum was issued which reads as under:
In B.P. Ms. No.18, dated 10-1-1974, certain technical and provincial posts for the Vijayawada Thermal Power Station were sanctioned. For filling up the posts of UDCs, LDCs and Typists instructions were issued to the Superintending Engineer, Vijayawada Thermal Power Station by the Chief Controller of Accounts that experienced candidates may be got by addressing the surrounding operation circles may spare senior most candidates as far as possible. It is also stated therein that the candidates coming from Operation Circles will have their lien in the parent circles with chances of confirmation and future promotions therein and in case if retrenchment in the new circle the candidates will go back to their parent circles without creating problems for re-absorption.
As per Regulation 10 of APSEB Service Regulations Part III the seniority of a member of service who is transferred on administrative grounds from one unit to another unit shall be fixed in the later unit with reference to the date of his first appointment in the former unit and a member of a service who is transferred 'at his request' from one unit to another shall have his seniority fixed in the later unit with reference to the date of his first appointment in that unit.
The issue has been examined and the attention of the Chief Engineers, Chief Controller of Accounts and Superintending Engineers, Vijayawada Thermal Station is drawn to the Board's M.No.207/R1/74-4, dated 7-11-1974 and they are informed that the willingness of the senior and experienced employees of neighbouring operation circles of VTS and TLC, Hyderabad who have given their willingness, in writing may be transferred to the VTS on administrative grounds specifying the following conditions in their orders of transfer to the VTS Vijayawada.
(1) The transfer is according to Regulation 10(iii) of APSEB Service Regulation, Part III.
(2) The transfer is on the ground that it would be left to the Board and concerned administrative authority to transfer them back whenever found necessary and no choice is left to the concerned employee.
3. Yet again on 23-12-1977, the said decision was reiterated. Pursuant to and in furtherance of the said policy decision, the orders of transfer were issued through Memo No.02/F/32 Vol.1882/80 dated 30-3-1980. The personnel mentioned therein were transferred stating:
The above personnel are informed that their transfer is according to regulation 10(iii) of APSEB Board Service Regulations Part III and it would be left to the Board and the Superintending Engineer/Civil Circle, Donkarayi to transfer them back to LS Project wherever found necessary and no choice would be left to them. Their seniority will be maintained in Lower Sileru Project only.
4. Questioning the said order, the unofficial respondents herein filed Writ Petition No. 1913 of 1990 praying the quash the guidelines issued by the Board through its Memo dated 28-10-1989 and also the Memos dated 13-12-1989 and to declare the action of the respondents in not taking the date of joining at VTPS as criteria for fixing up the seniority as illegal and unconstitutional. A learned single Judge of this Court allowed the said writ petition holding that the appellants had been transferred only on compassionate grounds and the action of the Board is trying to give seniority in the Thermal Power Station from the date of their first appointment and keeping them over and above the writ petitioners is bad in law stating:
It is not in dispute that the above judgment has not only become final but the same was also implemented in case of some of the employees working in the Vijayawada Thermal Power Station. Hence, I do not see any reasons in not extending the same benefits to the petitioners herein as the petitioners have joined the service much earlier to the proposed respondents herein, consequent upon the closure of Sileru Hydro Electric Project in 1981.
5. In the aforementioned writ petition, the Court supported the contention of the appellants. However, having regard to the representation by the writ petitioners respondents, the Board had issued B.P. Ms. No. 309, dated 29-9-1991 and took a decision that the appellants herein would rank junior to the writ petitioners. The matter was brought to the notice of the learned single Judge who rejected the contention that B.P. Ms. No. 309 had not been questioned. It was directed:
.......without choosing to question those individual orders, the petitioners cannot question the memo issued by the first respondent in B.P. Ms. No.309, dated 29-9-1991. I have no hesitation to reject the submission for the obvious reason that the self same Board having rejected the representations filed by the petitioners has taken a policy decision in B.P. Ms. No.309 dated 29-9-1991 to fix the seniority of those employees who joined in service after 1-8-1991 by treating all the transfers only on compassionate grounds or at request by giving a go bye to some of the orders where the transfers were shown on administrative grounds. Secondly, the judgment of this Court in Writ Petition No.16362 of 1990 and batch dated 31-7-1996 has not only become final but also the same was implemented by the Board. Hence, it cannot treat the employees similarly situated in a different manner and the same offends Article 14 of the Constitution of India.
6. The present appeal preferred by the appellants was dismissed by a Division Bench of this Court. The appellants filed an application for grant of special leave to the Supreme Court of India and by an order dated 1-5-2000 the Apex Court allowed the same directing the appeal to be decided afresh while holding:
We have gone through the judgment of the Division Bench of the High Court and we find that the judgment does not consider the arguments in detail raised on behalf of the appellants herein. The contention that the appellants were transferred along with the post and even though the reason for the transfer was that there was surplus staff, that itself has to be regarded as an administrative consideration for transferring the appellants and, therefore, the appellants were entitled to carry the seniority along with them and other such contentions merit more though consideration by the High Court.
We therefore, allow this appeal and set aside the judgment of the Division Bench with a direction that WA No. 1829 of 1998 should be decided afresh.
7. Mr. Venkata Ramana, learned Counsel appearing on behalf of the petitioners submitted that the learned single Judge proceeded on the basis that earlier judgment has become final although the appellants were not the parties thereto. It was contended that the seniority of the appellants having been protected in terms of Regulation 10(iii), the rights vested in him could not have been taken away by issuing subsequent order. The learned Counsel would contend that before this Court the said memo dated 28-5-1975 extracted supra had not been questioned and thus the impugned order must be held to be bad in law. It was submitted that prior to 1988, the Vijayawada Thermal Power Station was not treated to be a separate unit. It was submitted that having regard to the fact that the appellants stood absorbed on 28-10-1989 in the Vijayawada Thermal Power Station, the question of their right being affected by reason of B.P. Ms. No.309 dated 29-9-1991 would not arise. It was urged that the circles are separate units unless they are otherwise so declared, the same would be part of the Board which has been accepted by the Board in the counter-affidavit.
8. The learned Standing Counsel for the Electricity Board however would submit that the appellants having been appointed at their own request, Regulation 10(iv) would apply in the instant case. According to the learned Counsel, the B.P. Ms. No.309 is being implemented.
9. Mr. Radhakrishna Rao appearing for the writ petitioner-respondents inter alia submitted that the transfer of the appellants to Vijayawada Thermal Power station was not a permanent one and as they retained their seniority in the parent post, the same cannot be treated to be a transfer on administrative ground so as to attract Regulation 10(iii). The learned Counsel submitted that the appellants 2, 4, 6 and 7 had not been given any joining time and allowances and that cannot be a ground to hold that the transfer was effected on administrative ground. He would urge that unless the lien itself is transferred the question of the appellants getting seniority in terms of Regulation 10(iii) would not arise. It was further submitted that having regard to the fact that B.P. Ms. No.309 dated 29-9-1991 having not been challenged, this appeal should be dismissed as the same is binding on them.
10. Thus it is not in dispute that in the event the order of transfer is construed to be on administrative ground, the appellants herein would retain their seniority from the date of their appointment in the Lower Sileru Hydro Electric Project. However, the matter may be different if the transfer is effected on their own request.
11. As noticed hereinbefore, the recitals of Memoranda issued in the years 1975 and 1977 are clear and unequivocal. Four employees sought for transfer voluntarily and accepted to forego their seniority in their parent unit. Their services were transferred in terms of the agreement arrived at by and between the Trade Unions and the Management As it would appear from the said Memorandum, such administrative transfers were effected having regard to their experience and keeping in view the fact that there has been a total ban on employment.
12. The Board which has at its disposal the legal advisors must have taken into consideration the applicability of Regulations 10(iii) and 10(iv). They had clearly indicated that these proceedings should be considered to be transfers on administrative grounds. Thus, the seniority would be protected under Regulation 10(iii). Even the orders of transfers as noticed hereinbefore indicate the said fact.
13. The submission of the learned Counsel for the writ petitioners to the effect that lien was required to be transferred is wholly misconceived. Rule 30(e) of the State and Subordinate Service Rules deals with the effect of lien as under:
30(e) Where a member of a service is selected for appointment by direct recruitment to another post, category or class in the same or different service and is appointed to it, his lien on the service or his probationary right, if any, in the post of the service under the State Government, which he was holding prior to such appointment by direct recruitment, shall be retained for a period for three years or until he becomes an approved probationer in the post, category or class in the same or different service of this State Government, to which he has been selected, whichever is earlier, and if before the expiry of three years he is not an approved probationer in the post to which he was selected for appointment by direct recruitment, in the same or different service of the Government, unless he reverts to the parent department, he shall be deemed to have resigned from the service of which he was a member prior to such appointment by direct recruitment with effect from the date on which the three years period expires;
Provided that nothing in this sub-rule shall affect the benefits accrued to such member of a service or services in the previous post or posts; except the lien or probationary right, as the case may be, on such post or posts;
Provided further that where a member of a service is selected for appointment by direct recruitment to a post under the service of the Government of India or any other State Government, his lien on a post or probationary right, if any, in the State Government shall be retained for a period of three years or until he becomes an approved probationer in the service of the Government of India as the case may be whichever is earlier, and if before the expiry of three years he is not an approved probationer in any post under the service of that other Government as the case may be, unless he reverts to the services of the State Government, he shall be deemed to have resigned from the service of which he was a member prior to such appointment by direct recruitment, with effect from the date on which the three years period expires.
14. A person whose services had been transferred from one unit to another keeping his lien in the parent department intact, is entitled to keep his lien in the parent department when the order of transfer so stipulates. Lien terminates on his absorption in the transferred department. In the instant case, the appellants have been absorbed and thus the question of their still retaining lien in the parent department does not arise.
15. The Board as noticed hereinbefore prevaricated its stand from stage to stage. Before the learned single Judge in the counter-affidavit it supported the case of the writ appellants having regard to the aforementioned memos. It now seeks to change its stand having regard to B.P. Ms. No.309 dated 29-9-1991. Seniority although not a fundamental right, but is a civil right. A person can be deprived of from such right only on valid grounds. Once, after considering the pros and cons, the Board had conferred such seniority upon the writ appellants, in our opinion, it cannot go back from the said position upon changing the factual matrix that they had been transferred on compassionate grounds. The question as to whether options had been exercised by the writ appellants and their cases had been taken into consideration on compassionate ground, is not a matter which should be considered at a later stage. The Board was under an obligation to clear its stand even at that point of time. The appellants gave option having regard to the fact that they had no other way to continue in service as otherwise they would have been retrenched. The Board has also accepted the said option keeping in view their experience while working in lower Sileru Project. We are of the opinion that different stands could not have been taken by the Board in the year 1991. It is now irrelevant to consider as to whether that transfer should be treated to be temporary and to consider whether their seniority was to be maintained in the parent department. This fact goes to show that they were not retrenched from the services of the Board. The transfer effected was considered at that point of time to be a permanent transfer as a result whereof the writ appellants have given up their seniority. The very fact that their lien was kept in tact clearly goes to show that they had not given up their seniority as the same was maintained at their parent department.
16. The earlier judgment passed by a learned single Judge of this Court as also another learned single Judge in the main Judgment have not had occasion to consider the effect of 1975 memo which was the basis for passing the transfer orders and further in view of the writ appellants being not parties thereto, the same were not binding on them.
17. For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained and it is accordingly set aside. The writ petitions are therefore dismissed and the writ appeal is allowed. No costs.