Andhra HC (Pre-Telangana)
Nizam Sugars Officers Welfare ... vs Government Of Andhra Pradesh And Others on 2 November, 1998
Equivalent citations: 1998(6)ALD538, 1998(6)ALT507
Author: B.S. Raikote
Bench: B.S. Raikote
JUDGMENT
1. This writ petition is filed praying for a writ of Mandamus or any other appropriate writ or direction, directing the respondents to retain and continue the services of the petitioner Nos.2 to 16 in the respondent No.2 - Company, as officers with all the consequential benefits, by declaring the action of respondent Nos. 1 and 2, transfering the petitioners 2 to 16 to the respondent No.3, along with the machinery and other property of the Hindupur unit of the respondent No.2 -Company, as illegal, arbitrary, discriminatory, without jurisdiction etc., and opposed to the principles of natural justice and as such violative of Articles 14, 16 and 21 of the Constitution of India.
2. In the affidavit filed in support of the writ petition, it is stated that the petitioner No. 1 is the registered association of the officers of the respondent No.2 and petitioners 2 to 16 are the employees/officers of the respondent No.2 and respondent No.2 - Company being a Government Company is State within Article 12 of the Constitution. The respondent No.2 called Nizam Sugar Limited is a company producing sugar and other by-products of sugar. The respondent No.2 - Company has seven sugar manufacturing units and three distillary units and one sugar machinery division. The head office of respondent No.2 is situated at Hyderabad. All the petitioners are in the official cadre working in Hindupur unit, which is a part and parcel of respondent No.2 - Company. But the respondent No.2 is trying to sever the connection between the petitioners and the company on the ground that the said unit has been sold out to the highest bidder i.e., respondent No.3 herein. But this respondent No.3 is a private entrepreneur, and directing the petitioners to go into the service of respondent No.3 would be arbitrary, discriminatory, illegal and violative of Articles 14 and 21 of the Constitution. It is further stated that the petitioners are appointed by respondent No.2 - Company and their services are transferable from one unit to another unit. But on the relevant date i.e., on the alleged transfer of the unit, they were incidentally and accidentally working in Hindupur unit and they were working in the officers cadre in respondent No.2 - Company for several years, ranging from two to twenty four years and they have been appointed in pursuance of an advertisement given in the newspaper by respondent No.2 to be recruited to the service of the company and they were promoted from time to time to the next cadre. These Officers are transferable from one unit to another unit, and there is a common seniority in the respective cadre maintained by respondent No.2 - Company itself. It is further averred in the affidavit that as the respondent No.2 -Company is facing financial crises and on the basis of the advise of respondent No. 1 -
Government of Andhra Pradesh, has decided to sell the sugar unit at Hindupur called Sudhanagar Sugar Unit along with Ammtpur Sugar Unit, situated at Miryalguda in Nalgonda District and accordingly issued a gazette notification, published in Enadu daily newspaper on 19-8-1996, inviting prospective purchasers from India and other foreign participants. Vide subsequent sale notification, the respondent No.2 - Company also proposed to sell another unit called Metapalli Sugar Unit. Later it was learnt that on the basis of the fact that respondent No.3 was the highest bidder, the respondent No.2 entered into an agreement with respondent No.3 to transfer the entire unit at Hindupur along with its employees and such action of respondent No.2 in selling the unit along with the employees in the unit is illegal and without jurisdiction. The petitioners are the permanent employees of respondent No.2, which a Government owned Company and as such it is a State under Article 12 of the Constitution. But by agreement, the petitioners are sought to be driven to the employment under respondent No.3, which is a private company, for which the petitioners are not willing. Moreover, from the memorandum of agreement entered into between the respondent No.2 and respondent No.3, the service conditions of the petitioners would be seriously affected. For instance, as per the said memorandum of agreement, the voluntary retirement scheme 'V.R.S.' would not be applicable to the Managers and Officers cadre. At any rate, petitioners cannot be transferred to the respondent No.3, without their option like chattel along with the machinery. Before such transfer of the unit to respondent No.3, the respondent No.2 has not sought the consent and willingness of the petitioners or their association. By protesting such transfer of the petitioners to the respondent No.3, the petitioners gave several representations on 3-8-1997, 27-8-1997 and 18-10-1997 etc. Some of the officers working at Hindupur unit were later transferred to other units at Medak and Zaheerabad and they are working happily in those units. But it is only the petitioners who were incidentally and accidentally working at the unit of Hindupur, which is now sought to be transferred to a private employer, and their transfer is against their will, and all their representations have gone in vain. In fact, the petitioners have been discharging their duties faithfully to the satisfaction of respondent No.2, all along and in these circumstances, they could not have been transferred to respondent No.3 by retaining their juniors in the employment of respondent No.2 and such action of respondent No.2 is highly arbitrary and violative of Articles 14 and 16 of the Constitution. The impugned transfer being unilateral, violating the service conditions of the petitioners, is illegal and violative of their fundamental rights guaranteed under tire Constitution. By the impugned transfer, petitioners are loosing their constitutional protection of approaching this Court under Article 226 of the Constitution. It is further contended that petitioners cannot be thrown at the mercy of a private, employer against their will and such private employer may terminate their services at any time and this private employer i.e., respondent No.3 hails from Belgaum in Kamataka State and is contemplating to establish the sugar factory at Belgaum in Kamataka State, but the petitioners come from Andhra Pradesh State and as such they will be forced to shift their families to Kamataka State and they will made to be at the mercy of such private employer in Kamataka. At any rate, they stated that retaining their juniors under the employment of respondent No.2, without following the principle of 'last come first go', and transferring the petitioners to private employer, is highly discriminatory and in these circumstances, petitioners do not have any other efficacious remedy, except to approach this Court under Article 226 of the Constitution of India.
3. The learned Counsel appearing for the petitioners reiterated the case of the petitioners set out in their affidavit filed in support of the writ petition. He also relied upon number of judgments of the Supreme Court and other High Courts, which I will be referring to shortly, while considering the merits of the case.
4. By filing separate counters, respondent Nos.2 and 3 denied the allegations made by the petitioners. Respondent No.2 stated that in the view of the report submitted by a committee, recommending the sale of Miryalguda and Sudhanagar unit at Hindupur, to avoid further loss, the respondent No.2 is compelled to sell the Sudhanagar unit at Hindupur. Challenging the sale notification, earlier Ritu Sankshama Sangam of Hindupur filed a writ petition in WP No.8168 of 1997, but the same was dismissed by the learned single Judge vide judgment and order dated 22-4-1997 and even the Division Bench of this Court dismissed the appeal, vide order dated 18-8-1997. In.these circumstances, the present writ, petition challenging the transfer of Sudhanagar unit, cannot be entertained. At any rate, the sale of Sudhanagar unit was necessiatcd due to heavy loss incurred by the unit. The said sale was based on the recommendations of SBI Capital Markets Limited, and with the consent of the Board of respondent No.2, which accepted the sale price at Rs.5.00 crores. The price negotiated was based on the age, condition of the plant and the machinery and other relevant factors. In addition to that, the third party has to pay V.R.S. benefits to workers, who do not agree to shift to the new location and the third party has agreed to absorb all the employees, including the officers of the unit, without any retrenchment and in view of the said agreement dated 30-9-1997 entered into between respondent Nos.2 and 3, the respondent No.3 shall retain the services of all the existing employees of the Sudhanagar unit, including the petitioners, with service conditions, at least as prevailing as on the date of memorandum of agreement, including their salaries. Thus, the interests of the employees of sugar unit are well protected as per Clauses lOand 13ofthe agreement dated 30-9-1997 and, since the unit at Sudhanagar is being sold to respondent No.3, the company has no option, except to transfer the services of the petitioners to respondent No.3 and if the petitioners do not accept to work under respondent No.3, the respondent No.2 would be left with no option, except to discharge the services by giving three months notice as per the offer of their appointment with the company. It is further stated that respondent No.2 has accommodated as many members as possible in other units, depending upon the availability of the work. In the counter it is admitted that the services of three officers who were working at Sudhanagar unit at Hindupur were transferred to some other unit of the company, in view of the exigency of the work and it is not possible to accommodate further any more officers of Sudhanagar unit, since many of the officers are found to be surplus in the cadre in the other units. Counter further stated that there are 1,225 surplus employees in the permanent employees and 585 surplus employees in seasonal employees, thus there are 1,800 surplus staff in respondent No.2 - Company and the services of the petitioners cannot be absorbed in view of the excess staff in all the remaining units of the respondent No.2. It is further stated that having regard to these circumstances, the petitioners cannot complain violation of Articles 14, 16 and 21 of the Constitution and the writ petition has no merits, and accordingly, the respondent No.2 prayed for dismissal of the writ petition.
5. Respondent No.3 also filed a separate counter, reiterating the stand taken by respondent No.2 in their counter. Respondent No.3 further stated that if the petitioners do not accept to work with respondent No.3, it is open for them to take discharge of the services from the respondent No.2 - Company as per their offer in the appointment, without claiming any relief against respondent No.3 herein. Respondent No.3 further stated that in view of the Clauses 10 and 13 of the agreement dated 30-9-1997 entered into between respondent Nos.2 and 3, respondent No.3 would retain the services of all the existing employees of Sudhanagar Unit, including the petitioners, at least as favourable as prevailing as on the date of the memorandum of agreement, including their salary etc. With these clarifications, respondent No.3 also sought for dismissal of the writ petition.
6. The learned Advocate General appearing for respondent No.2 submitted that in view of the loss suffered by respondent No.2 - Company, it has been decided by the Board of Directors of respondent No.2 to transfer the unit at Sudhanagar Unit at Hindupur, along with the machinery and staff etc., to respondent No.3 and in view of the contract of employment between the petitioners and respondent No.2, the petitioners are liable to be transferred to respondent No.3, in view of the contract of sale entered into between respondent Nos.2 and 3. At any rate, the service conditions of the petitioners are protected. As per the agreement respondent No.3 has to absorb petitioners and the petitioners are bound to work under respondent No.3. He further stated that the sale price agreement between respondent Nos.2 and 3 also included the liability of absorbing the petitioners in respondent No.3 - Company. If the petitioners are not willing to join under the services of respondent No.3, the petitioners may have got to be terminated or discharged from the services by respondent No.2. He further submitted that when the appointment of the petitioners in the respondent No.2 is governed by the contract, as per the contract, the petitioners services are liable to be terminated and they cannot complain of violation of Articles 14 and 16 of the Constitution. He also relied upon some of the decisions of the Supreme Court in support of his contentions and these decisions also I will be considering, while considering the merits of the case.
7. Having regard to the pleadings on both the sides and also on the basis of the arguments addressed both by the learned Advocate-General on one side and the learned Counsel appearing for the petitioners on the other, the following points arise for my consideration;
(1) Whether the transferring of the petitioners to respondent No.3 on the basis of the agreement between the respondent Nos.2 and 3 dated 30-9-1997, without the consent of the petitioners is legal, valid and binding on the petitioners?
(2) Whether transferring the petitioners to respondent No.3, by retaining the juniors to the petitioners is violative of the principle "last come first go"?
8. Both the point Nos.l and 2 are interrelated and hence, I am taking them together for consideration. The learned Counsel for the petitioners strenuously contended that on the basis of the agreement between respondent Nos.2 and 3 dated 30-9-1997, the petitioners cannot be transferred from out of the employment of respondent No.2, to a private employer. It is not in dispute that to the agreement dated 30-9-1997 between respondent Nos.2 and3, neither the petitioners, nor their association is a party. It is not the case of the respondent No.2, that any option was given to the employees of the Hindupur unit for their services being transferred to respondent No.3, on the eve of the transfer of the entire Hindupur unit in favour of respondent No.3. It is also not the case of respondent No.2 that either the petitioners or their association has consented for such transfer of the petitioners to respondent No.3. However, the learned Advocate-General submitted that the petitioners are liable to be transferred to respondent No.3 in view of the terms and conditions of the appointment of the respondent No.2. He invited the attention of the Court to Clause 7(ii) of the terms and conditions of the appointment and contended that the services of any employee can be terminated without notice during the period of probation and by giving three months notice or salary in lieu thereof after confirmation. By relying upon the judgment of the Supreme Court reported in Radhakrishna Agarwal v. State of Bihar, AIR 1977 SC 1496, ( 1977 ) 3 SCC 457, [ 1977 ] 3 SCR 249, he further contended that when the authorities are acting in the contractual field, Article 14 or any of the fundamental rights would not be attracted. By elaborating his argument, he contended that the condition No.7(ii) is a term of the contract between the petitioners as employees and respondent No.2 as an employer, and under that condition, the services of the petitioners could be terminated and hence, the petitioners cannot rely upon Articles 14, 16 or 21 of the Constitution of India. The learned Advocate-General relying upon the Andhra Pradesh Prohibition of Absorption ofEmpioyees of State Government/Public Sector Undertakings into Public Service Act, 1997, further contended that the petitioners cannot claim their absorption in respondent No.2 - Company after the unit in which they were working is transferred to respondent No.3. As against this argument of the learned Advocate-General, the learned Counsel for the petitioners contending that the petitioners cannot be transferred to any private employer without their consent, relying upon the judgments of the Supreme Court reported in Manager M/s. P.K.P.B.F. v. Onkar, 1973 (1) SLR 946 (SC), Ortssa Electrical Engineers' Service of Association v. State ofOrissa, , wAJawtiarial Nehni University v. Dr. K.S. Jawalkar, 1989 (3) SLR 730.
9. Having gone through these judgments cited on either side, I find (hat there is substance in the argument of the petitioners Counsel. As a general principle, whenever there is a contract of service, between two persons - one employer and the other as the employee, the effect of the contract would be that the employee is ready to serve that particular master on certain considerations. Such an employer absolutely has no power or authority to transfer the employment of such employee to any third party, without his consent. If there is to be a transfer of an employee from one employer to another employer, it should necessarily be with mutual consent, or the contract of employment should have been provided for the same. In the decision reported in Manager M/s. P.K.P.B.F. v. Onkar (supra), the Hon'ble Supreme Court held that a contract of service is not capable of transfer unilaterally from one employer to another, and if there is to be any such transfer from one employer to another, the same can be effected only by tripartite agreement between the employer, the employee and the third party. That was a case in which an employee was appointed in a Bidi factory, but he was transferred to the head office. According to the facts of that case, the head office and the bccdi factory were treated as separate entities, though owned by the same firm. After the employee served for six years, the head office dismissed him from service. The question arose whether the head office as an employer could dismiss the services of the employee. The facts of the case disclosed that there was no separate appointment order by the head office and the employee was only transferred from the factory to the head office. Having regard to these facts, a question arose before the Supreme Court, whether there was any relationship of master and servant between the head office and the employee. The argument of the head office was that the factory as the employer has transferred the services of the employee to the head office permanently and, therefore, treating him as an employee of the head office, the head office could dismiss him from service. The contention of the employee was that the management of the factory had placed his services at the disposal of the head office and he continued to be as an employee of the factory, but not the head office, and the factory cannot transfer his services permanently to the head office, without his consent and he has not consented to it, and as such, it is only the factory as the employer could dismiss him, but not the head office. The Hon'ble Supreme Court noticing the important aspect of the case held that, the employee in that case had no time took up the plea, that his contract of the employment with the factory was ever terminated, or that he gave the consent, express or implied to his contract of service being transferred from the factory to the head office, and as such there was no fresh contract of employment between the employee and the head office and formulated the position of law, on this aspect, as under:
''8. A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which it would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party. Therefore, so long as the contract of service is not terminated, a new contract is not made as aforesaid and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do a certain work for another person, the employee still continues to be in his employment- The only thing that happens in such a case is that he carries out the orders of the master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pass his wages during the time that he was hired his services, but that is because of his agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done. But if the employee fails to cany out his directions he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer."
10. From the above law declared by the Supreme Court it is clear that unless there is a tripartite agreement between the employer, the employee and the third party, the services of the employee cannot be transferred to such third party. In the instant case, it is no doubt true that the respondent No.2 has transferred the unit at Hindupur to respondent No.3 vide agreement dated 30-9-1997 along with the machinery etc., but at the same time, the petitioners have not agreed for transfer of their services from respondent No.2 to respondent No.3, In these circumstances, the petitioners on the basis of the agreement dated 30-9-1998, cannot be forced to work under respondent No.3, without their consent. As I have already noted above, the petitioners have not given any consent for the transfer of their employment from respondent No.2 to respondent No.3. However, the learned Advocate-General argued that the petitioners have to necessarily go to the employment under respondent No.3, since the entire unit in which they were working has been transferred by respondent No.2 in favour of respondent No.3. It has to be noted at this stage itself that it is not the case of respondent No.2 that the petitioners were appointed in respondent No.2 unit at Hindupur only and the statement of the petitioners that they were appointed in the general recruitment in the respondent No.2 - Company and their services are liable to be transferred from one unit to another is not disputed or denied in the counter. From these, it follows, that the petitioners are the employees of respondent No.2 as an organisation, if by any reason, if the unit at Hindupur requires to be closed or transferred to some third party, the petitioners could be transferred to other units, if they are not willing to go under the employment of a third party like respondent No.3 in the instant case. In fact in similar situation, in the decision reported in Jawaharlal Nehru Universiiyv. Dr. KS. Jawalkar(supra), the Hon'ble Supreme Court was considering almost a similar circumstance. In that case also vide resolution of the Jawaharlal Nehru University dated 3-2-1981, the University decided and authorised the Vice Chancellor to transfer the Imphal Centre of Jawaharlal Nehru University to the Manipur University, along with the faculty members of the Imphal Centre. The facts of the case already reveal that the centre at Imphal was conducting Post-graduate studies and the same was required to be transferred to a newly constituted University called Manipur University. In those circumstances, the members of the faculty of the Post-graduate Centre at Imphal filed a writ petition challenging the action of the Jawaharlal Nehni University in transferring the members of the faculty to Manipur University, contending die the members of the faculty have not consented for such transfer. The learned single Judge of the High Court of Delhi allowed their writ petition, by holding that the transfer of the Post-graduate study centre from Jau'aharlal Nehru University to Manipur University would not tantamount to transferring the services of the faculty members to Manipur University and as such, the faculty members were not obliged to join their services under Manipur University. When the matter was taken up to Division Bench, the Division Bench upheld the judgment of the learned single Judge and further observed that the writ petitioners continued to be in the service of the Jawaharlal Nehru University, notwithstanding such transfer of Post-graduate study centre to Manipur University, and if the staff in Jawaliarlal Nehru University became surplus, the University was at liberty to dispense with the services of the employees on the basis of 'the last come first go' principle. Being aggrieved by the same, an appeal was preferred before the Hon'ble Supreme Court. The Hon'ble Supreme Court confirming the judgment of the Division Bench of the Delhi High Court, observed as under:
"7. In this appeal the main contention of the appellant is that the respondent was appointed at the Centre of Post-graduate Studies, Imphal and when the Centre was transferred to the Manipur University, his services were automatically transferred to the University, and consequently he could not claim to be an employee of the appellant University, the agreement proceeds on the assumption that the Centre of Post-graduate Studies at Imphal was an independent entity which existed by itself and was not a department of the appellant University. The submission proceeds on a fallacy. The Centre of Post-graduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity, the appellant University set up and organised the Centre at Imphal and 1008(6) FR-P-35 appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent's consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Postgraduate Studies, Imphal to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but only on the assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its subject; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be expressed or implied. We do not find it necessary to refer to any case law in support of this conclusion.
(8) In as much as the transfer of the Centre of Post-graduate studies from the appellant University to the Manipur University could not result in a transfer of the employment of the respondent from the one to other, it must be concluded that the respondent continues in the employment of the appellant University. The transfer of the Centre of Post-graduate Studies to the Manipur University may be regarded as resulting in the abolition of the post held by the respondent in the appellant University. In that event, if the post held by the respondent is regarded as one of a number of posts in a group, the principle "last conic, first go" will apply, and someone junior to the respondent must go. If the post held by him constitutes a class by itself it is possible to say that he is surplus to the requirement of the appellant University and is liable to be retrenched. But it appears that the respondent has been adjusted against a suitable post in the appellant University and has been working there without, break during the pendency of the litigation, and we cannot, therefore, permit the appellant University to retreneh him.
(9) In the result, the appeal fails and is dismissed with costs.'' From the above law declared by the Hon'ble Supreme Court it is clear that, even in case where either a department or a wing or unit is transferred to a third party, unless the employee consents to it, his services cannot be transferred to the third party and not withstanding such transfer of the unit or department, such employee continues to be the employee of the organisation and he is entitled to be absorbed in the other department or unit, if the organisation finds that by such transfer of the unit or wing to some third party, a surplus staff is resulted, it is open to such employer to terminate the services of the employee or employees on the basis of the 'last come first go' principle. In the instant case, the statement of the petitioners that some of the employees who were juniors to them in their cadre working in other units, are continued in service, and if that is so, transferring the petitioners to respondent No.3, by retaining the juniors to the petitioners would be discriminatory and violativc of Article 14 of the Constitution. It is not in dispute that the respondent No.2 - Company is a Government company and it is a 'State' for the purpose of Article 12 of the Constitution. The learned Advocate-General has conceded that the respondent No.2 is a Government company and the Government o\vnes 98 per cent of the shares in the company. In this view of the matter, this company being "other authorities" for the purpose of Article 12 of the Constitution, cannot violate the fundamental rights guaranteed to the petitioners. Moreover, as contended by the petitioners Counsel, by such transfer of the petitioners from an organisation, which is an instrument of State, to third private party, would have the effect of cliangmg their service conditions to their prejudice and disadvantage, inasmuch as, the contractual relationship of employment would be changed by leaving them at the mercy of the employer, without their consent. As I have already pointed out, transferring the petitioners to respondent No.3, by retaining the juniors to the petitioners is clearly violative of Article 14 of the Constitution. In the decision reported in Vigyan Bhushan v. Union of India (Bombay), 1978 (1) SLR 84, the Hon'ble Supreme Court has pointed out that in case of abolition of a permanent department, the surplus staff may be transferred to the other departments and if it is not possible or feasible, the juniors most may be retrenched. Having regard to this consistent law declared by the Hon'ble Supreme Court, the action of respondent No.2 in transferring the petitioners to respondent No.3 on the basis of the agreement dated 30-9-1997 is illegal. To the same effect also is the law declared by the Supreme Court in the decision reported in Mysore S.R.T. Corporation v. A. Krishna Rao, 1973 Labour and Industrial Cases 96, in which the Hon'ble Supreme Court clearly pointed out that under Section 34 of Road Transport Corporation Act (64 of 1950), the employee of the former Bangalore Road Transport Corporation cannot be regarded as the employee of the Road Transport Corporation, in the absence of their giving any option. The learned Advocate-General consistently maintained that the respondent No.2 is entitled to tenninate the service of the petitioners in terms of service condition No.7(ii). The fact remains in this case that services of the petitioners have not been terminated, but they are only transferred. As pointed out by the Hon'blc Supreme Court in the decisions reported in Govi. Branch Press v. D-B. Beltiappa, . and State of Haryana v. Des Raj, 1976 (1) SLR 191, a permanent employee cannot be terminated in the absence of a request and if there is any arbitrary termination, Articles 14, 15 and 16 of the Constitution would be attracted. I have already referred to the judgments of the Supreme Court, where the Supreme Court has ruled that in case of excess staff, it is always open to the employer to terminate or retrench the employees on the basis of 'last come first go' principle. In the instant case, undisputed!)' the services of the persons who were juniors to the petitioners are continued with the respondent No.2 and the petitioners are being transferred to respondent No.3 only because the unit at Hindupur is transferred to respondent No.3. But such transfer without the consent of the petitioners, as I have already stated above, is illegal, void and violative of Articles 14 and 16 of the Constitution and such transfer, by retaining the juniors to the petitioners, would be violative of the principle "last come first go". Having regard to these circumstances, the judgment of the Supreme Court relied upon by the Advocate-General reported in Radhakrishna Agarwal v. State of Bihar, AIR 1977 SC 1496, ( 1977 ) 3 SCC 457, [ 1977 ] 3 SCR 249, does not apply to the facts of this case, since the transfer of the petitioners from respondent No.2 to respondent No.3 is not within the contractual field and the petitioners have -not consented for such transfer. Even the Andhra Pradcsh Prohibition of Absorption of Employees of State Government Public Sector Undertakings into Public Services Act, 1997 also would not apply to the facts of this case, since the petitioners are not seeking for absorption in any public sector undertakings and their simple case is that they shall not be transferred to respondent No.3 without their consent, by retaining their juniors.
11. For the above reasons, I hereby allow the writ petition and declare the transferring of the petitioners from respondent No.2 to respondent No.3 as per the agreement dated 30-9-1997, entered into between respondent Nos.2 and 3, as illegal and not binding on the petitioners. The petitioners shall be continued within the employment of respondent No.2 and as a result of transferring the Sudhanagar Unit at Hindupur to respondent No.3, if any surplus staff is resulted, the respondent No.2 is at liberty to retrench or terminate the service of employees including the petitioners on the basis of "last come first go" principle. In the circumstances of this case, the parties shall bear their own costs.