Allahabad High Court
R.K. Gupta vs Chairman/Managing Director, U.P. ... on 4 February, 2002
Equivalent citations: 2002(1)AWC772, [2002(95)FLR497]
Bench: M. Katju, S.K. Singh
JUDGMENT
M. Katju, J,
1. This writ petition has been filed against the impugned order of transfer dated 18.12.2001 (Annexure-1 to this petition) and the relieving order dated 7.1.2002 (Annexure-2 to this writ petition).
2. The petitioner was posted as Executive Engineer at Panki Thermal Power Station, Panki, Kanpur, under the U. P. State Electricity Board. The U. P. Electricity Reforms Act, 1999. trifurcated the Board into three Corporations, namely, U. P. Power Corporation Limited, U. P. Rajya Vidyut Utpadan Nigam Ltd. and U. P. Rajya Jal Vidyut Utpadan Nigam. A Transfer Scheme, 2000 was framed in exercise of powers conferred by Section 23 of the said Act, photostat copy of the relevant part of the Transfer Scheme is Annexure-5 to the petition. Clause 6 (6) of the Transfer Scheme states that initially the personnel of the Board shall continue on provisional basis in the place where they were posted on the date of the transfer subject to certain terms and conditions. Thereafter, the U. P. Power Corporation Ltd. in consultation with the two other Transferee Corporations and the State Government has to finalise the permanent absorption of the personnel specified in Schedule H and I of the scheme taking into account the suitability, ability and experience of the personnel, number and nature of vacancies and other relevant factors. For this purpose the U. P. Power Corporation, in consultation with the above mentioned authorities has to constitute a committee which has to make recommendations and thereafter the U. P. Power Corporation Ltd. again in consultation with the above mentioned authorities has to take a decision on the transfer and permanent absorption of the relevant personnel taking into account the recommendation of the committee. By notification dated 9.1.2001 (Annexure-7 to the petition) the U. P. Power Corporation Ltd. in pursuance of the provision of clause 6 (6) of the Transfer Scheme decided to finally absorb certain employees whose names are given therein but with certain conditions. One of the conditions was that these employees of U. P. Power Corporation Ltd. may be placed on deputation with the U. P. Vidyut Utpadan Nigam Ltd. till 31.3.2002 or earlier.
3. The petitioner had opted for employment in U. P. Power Corporation Ltd. vide Annexure-8 to the petition and his grievance is that since he has been finally absorbed in the service of U. P. Power Corporation Ltd. he cannot be sent on deputation without his consent to U. P. Vidyut Utapadan Nigam Ltd. By means of the Impugned order dated 18.12.2001. Annexure-1 to the petition the petitioner was promoted as Deputy General Manager and sent on deputation to U. P. Rajya Vidyut Utpadan Nigam Ltd. vide order of U. P. Power Corporation Ltd. dated 10.12.2001 (Annexure-9 to the petition).
4. In paragraph 15 of the counter-affidavit it is stated that the U. P. Rajya Vidyut Utpadan Nigam Ltd. had sent a letter dated 20.6.2001 to the U. P. Government mentioning about the shortage of officers in its service because of which it was not possible to run the Thermal Power Project. By letter dated 23.11.2001 and reminder the Vidyut Utpadan Nigam has requested U. P. Government to extend the deputation period. Photostat copies of the relevant letters in this connection are Annexures CA 3, 4 and 5 to the counter-affidavit.
5. In paragraph 17 of the counter-affidavit, it is stated that the office memo dated 9.1.2001 itself provides for continuance of deputation till 31.3.2002 and thus there was no question of getting any consent from the petitioner.
6. Learned counsel for the petitioner submitted that the petitioner cannot be sent on deputation against his wish and for this purpose, he has relied on the decision of the Gujarat High Court in Bhagwati Prasad v. State of Gujarat. 1977 (2) SLR 551, he further relied on the notification dated 27.3.1968 Issued by the U. P. State Electricity Board vide Annexure-R.A.-1 to the rejoinder-affidavit.
7. On the other hand, Sri S.P. Mehrotra learned counsel for the respondents has relied on the decision of the Supreme Court in C. Beepathuma and Ors. v. Velasari Shankaranarayana Kadambolithaya, AIR 1965 SC 241, and he has contended that the petitioner cannot approbate and reprobate. By the order dated 9.1.2001 the petitioner was finally absorbed in U. P. Power Corporation Ltd. subject to the terms and conditions mentioned in the said order. The said order specifically provided that if the Engineer Officers who stood absorbed in U. P. Power Corporation Ltd. were posted on 9.1.2001 in U. P. Rajya Utpadan Nigam Ltd., they were to continue to remain on deputation to the said Corporation upto 31.3.2002 despite their absorption in U. P. Power Corporation Ltd. Hence the petitioner who was posted on 9.1.2001 at Panki Thermal Plant, Kanpur, which has now come under the U. P. Rajya Vidyut Nigam Ltd. continues to remain on deputation in that corporation despite his absorption in U. P. Power Corporation Ltd. The order dated 9.1.2001 is a composite order and the petitioner cannot claim the benefit of part of it while not accepting another part. Similarly the petitioner on accepting his promotion as Deputy General Manager by order dated 10.12.2001 is also bound by the conditions mentioned in the said order, namely he was to remain on deputation with U. P. Rajya Vidyut Utpadan Nigam Ltd. Thus both the orders dated 9.1.2001 and 10.12.2001 are composite orders and cannot be accepted in part only.
8. In our opinion, the contention of the learned counsel for the respondent appears to be correct, since it is supported by the aforesaid decision of the Supreme Court in C. Beepathuma's case (supra). Moreover, since a new scheme had come into force regarding production and distribution of electricity in U. P. obviously there has to be some flexibility in the matter for some period. After all the generation and supply of electricity has to continue in the State. The U. P. Rajya Vidyut Utpadan Nigam Ltd. is experiencing shortage of officers who had experience in production of electricity. We see no reason to interfere with the order placing the petitioner on deputation with the said Corporation since he was working at Panki Thermal Plant. Kanpur, which does the work of production of electricity and hence he must be having experience in the matter. The decision of the Gujarat High Court on which reliance has been placed by the learned counsel for the petitioner is, therefore, distinguishable.
9. The petitioner in fact been given promotion and hence we see no reason to interfere with the impugned orders. Moreover, this is not a fit case for exercise of discretion of power under Article 226 of the Constitution of India.
10. The petition is dismissed.