Dasaiah and Others vs State of Karnataka and Others

Prior to 1965, the petitioners were the work charged employees otherwise known as daily-wage workers on the rolls maintained by the Public Works and Electricity Department. In the months of August and September, 1965, they were regularly appointed as Mechanics, Class II by the Chief Engineer, Electricity, H.E.C.P. H.E.C.P. is the abbreviation for Hydro Electric Construction Project in the Public Works and Electricity Department of the Government of Karnataka established for the purpose of construction of Hydro Electric Projects and supply of power. The Sharavathy Valley Hydro Electric Project, the Bhadra Hydro Electric Project and other works remaining over relating to the said projects besides the works connected with the installation of 8th, 9th and 10th Units of Sharavathy Generating Station were transferred to the Karnataka Power Corporation Limited (''the Corporation'' for short) subsequently. The incorporation of the Corporation and transfer of the projects resulted in the disbandment of H.E.C.P. with the need to protect the interests of its personnel and the need was met by deputation of the employees to the Corporation with the exception of those who are engaged in the operation and maintenance of both the projects aforesaid.

On 14-11-1975, the Government accorded sanction to the transfer of the Ex-H.E.C.P. personnel mentioned in the list appended to the writ petition to the Corporation intended to be absorbed by it. The order so passed superseded by another order dated 17-6-1982 bearing No. PWD 211 PPC 81 reads as follows:

"All the regular Ex. HECP employees whose names are indicated in the Annexures-A and B to the order were transferred and deemed to have been so transferred to the Corporation with effect form 1-4-1971 for absorption in the services of the Corporation with effect from the said date."

The Corporation by order dated 4-8-1982 absorbed the services of the petitioners among other persons referred to in the Government Order with effect from 1-4-1971 and thereafter the Corporation published the final seniority list of employees working in Jog Personnel Unit as on 31-12-1982. The names of the petitioners in the said list are to be found at Sl. Nos. 14, 22 to 25, 27, 32 and 35 to 37 respectively. Respondents-3 to 7 are at Sl. Nos. 8 to 12 in the said list.

Whereas the petitioners are stated to be regularly appointed with effect from 1-4-1971, respondents-3 to 7 who were earlier on the rolls working as daily-wage workers are stated to have been regularly appointed with effect from 1-4-1974. The designation of respondents-3 to 7 is Operatives. The petitioners are also known as Operatives absorbed in the Corporation. Between the stage when the H.E.C.P. was disbanded and the stage before the petitioners were absorbed in the Corporation, was the transitory period during which the petitioners came in the administrative control of the K.E.B. because Units 1 to 8 of the Sharavathy Generator Station having been completed were entrusted to the Board for operation and maintenance. During this period, the petitioners who were working in these units were transferred to K.E.B. But Units 9 and 10 had not been completed and, therefore, these units were transferred to the Corporation directly and respondents-3 to 7 were working in Units 9 and 10 which were within the Corporation on transfer of these units to it by the Government.

In August and September, 1965, the petitioners had been appointed as Mechanics, Class II in the pay-scale of Rs. 80-3-110. Respondents-3 to 7 who were on the rolls were stated to be appointed on 1-4-1974 as Operatives in the Corporation. It appears from the records that they had been promoted as Work Assistants with effect from 28-12-1977 whereas the 1st petitioner had been promoted as Work Assistant on 12-1-1978 and the other petitioners with effect from 1-10-1978. Thus, the petitioners have been placed below respondents-3 to 7 in the seniority list of Assistants (Works). On 17-7-1974, the Government had served notices on the Ex-H.E.C.P. regular employees to note their option between K.E.B. and the Corporation for absorption in the services of the organisations and issued orders transferring 302 regular employees of erstwhile H.E.C.P. to the Corporation for absorption. Since a section of these 302 employees opted for absorption in K.E.B., they were aggrieved by the absorption orders and therefore they challenged the same before this Court and in pursuance of the orders passed by this Court, the Government decided to deal with the issue afresh. Thereafter, fresh option notices were served on the Ex-H.E.C.P. regular employees but were with the Corporation calling upon them to exercise their option for absorption in the Corporation or to opt for termination with the benefits available in accordance with law. It was made clear in the notices that if the employees prefer to be transferred to only one of the aforesaid organisations their choice would be accepted or otherwise their services would be terminated with effect from a date subsequent to 31-10-1978. In response to the notice, only 131 employees opted for absorption in the Corporation. A section of the employees opted for absorption only in K.E.B. But for certain reasons, they could not be absorbed in K.E.B.

Subsequently another set of option notices were issued and the last date was fixed as 30-4-1981 for receipt of the option exercised. Negotiations took place between the Legal Advisor of the employees in regard to the terms and conditions. After reaching a consensus, final notices were issued to the employees whose names are found in Annexure-D giving liberty to them to exercise their option either for the Corporation or for retrenchment. In response to this, 155 options were received. However, exception was made in regard to Ex-H.E.C.P. employees who could not exercise their option on account of retirement or death and the Government decided to give pension and D.C.R.G. benefits to them. As the culmination of all these developments, order dated 17-6-1982 emerged. The relevant extract of the said order is reproduced below:

"i) All the regular Ex-HECP employees, whose names are indicated in the An-nexures-A, B (except those of Sl. Nos. 156 and 157) to this order are transferred and deemed to have been so transferred to the KPCL with effect from 1-4-1971 for absorption in the services of the KPCL with effect from the said date."

However, in para-3 of the said order, it is provided "these orders do not modify the orders/instructions of the KPCL issued from 1-4-1971 on any other service conditions of these employees".

In the memorandum issued by the Corporation and in para 2.2 is to be found the following instruction/order:

"The services of the regular, temporary, work-charged and NMR Personnel referred to in Annexures-A and B (excluding those at Sl. Nos. 156 and 157) and of the Ex-HECP/SVP/PWD/KEB Organisation are absorbed in the KPCL with effect from 1-4-1971 or from the date of their joining in KEB/KPCL, whichever was later, without prejudice to the instructions/orders issued by the KPCL on any other service conditions of these employees."

The petitioners herein are aggrieved by the seniority fixed by the Corporation. Their grievance is that though their absorption took place with effect from 1-4-1971 they are accorded the benefits of promotion and other benefits with effect from the date but they have been relegated to a lower position in the cadre of Assistants (Works) in the Corporation by conferring undue advantage on respondents 3 to 7 who are stated to have been promoted with effect from 1-4-1974. The promotion purported to have been extended to respondents-3 to 7 in 1977 and thereafter to the petitioners in 1978 as Assistants (Works) is violative of equality clause guaranteed under Article 14 of the Constitution, according to the petitioners.

The petitioners have sought for a writ of certiorari for quashing the final seniority list of employees working in Jog Personnel Unit as on 31-12-1982 vide Annexure-D issued on 2-5-1983 in so far as it relates to the petitioners and respondents-3 to 7. The petitioners have also asked for a direction to the Corporation to equate the posts held by the petitioners with that of Assistants (Works) in the Corporation and also to prepare a seniority list by taking into account the entire services of the petitioners rendered before and after absorption on 1-4-1971 in the service of the Corporation together with consequential benefits.

Elaborate statement of objections has been filed by the learned counsel appearing for respondent No. 2. Though respondents-3 to 7 have been served with notice, they have not chosen to file statement of objections and it is their promotion which is challenged in these writ petitions. In the counter filed by respondent-2, it is sought to be made out that as a result of conciliation under the Industrial Disputes Act between the Corporation and all the Unions of the workmen, a settlement dated 29-1-1979 was entered into vide Annexure-VI appended to the statement of objections whereby the present 3 cadre of workmen were augmented by two more promotional cadres with effect from 1-10-1978. It is stated that consequently petitioners-2 to 11 were promoted as Assistants (Works) with effect from 1-10-1978, The ranking of the petitioners in the impugned seniority list is based on the promotions effected as above, according to respondent-2. Reference is made to a negotiated settlement among the employees belonging to the different departments in para-5 of the counter. It is stated that the seniority for employees in the operation and maintenance of Sharavathy Generating Station and for the employees working in the Civil Construction of 9th and 10th units of Sharavathy Generating Station were being maintained separately. Admittedly there are 10 units in the Sharavathy Generating Station of which units 1 to 8 were under the control of K.E.B. for the purpose of operation and maintenance upto 14-11-1975 and it was only units 9 and 10 which were under the control of the Corporation. On the completion of units 9 and 10 and on handing over of these units 1 to 8 from K.E.B. to the Corporation the question of filling up of the promotional vacancies in all the aforesaid 10 units surfaced. The first of the settlement with the Corporation was made during 1979. However, it is stated that though discussions took place and agreement was drafted after deliberation among various employees (there were 2 unions in existence in Jog) only an unsigned understanding was reached with the two unions on the one hand and the Chief Engineer on the other. The understanding is embodied in Annexure-II and according to the unsigned understanding or agreement two units came to be recognised one unit was to fix 80% promotion/posts from among the employees in the operation and maintenance of units 1 to 8 and the other 20% from among the employees in the construction units of 9 and 10. This understanding, it is stated, was brought into force on 26-10-1978 retrospectively with effect from 26-12-1977 according to the Chief Engineer''s letter dated 27-10-1978 vide Annexure-III. It is further stated that as on 28-12-1977 there were 5 vacancies against the 20% quota which was earmarked for the construction wing and no vacancy against 80% reserved for the operation and maintenance wing. It is on this basis that respondents-3 to 7 came to be promoted according to them and at the same time the 1st petitioner and one Siddaiah were promoted as Assistants (Works) with effect from 12-1-1978 and they were working as Operatives in the operation and maintenance wing. The vital difference is that respondents-3 to 7 who were also Operatives but in the construction wing had already been promoted in the Corporation with effect from 28-12-1977 vide Annexure-V. Thus it is stated that the promotion of respondents-3 to 7 is beyond reproach.

It is denied that there has been any infringement of the petitioners'' constitutional rights under Articles 14 and 16 of the Constitution. It is highlighted that the Government has issued guarded instruction to tide over administrative difficulties while making a package deal of absorption of Ex-H.E.C.P. employees in the Corporation by the following words:

"These orders do not modify the orders/instructions of K.P.C. issued from 1-4-1971 on any other service conditions of these employees."

The point for consideration is whether the petitioners are entitled to be placed higher than respondents-3 to 7 in the seniority list in the facts and circumstances of the case and whether the petitioners are entitled to the reliefs sought in these writ petitions.

It appears to me that the entire case turns on the question whether the unsigned understanding on which reliance is placed by respondent-2 under Annexure-II to fix 80% promotion/posts from among the employees in the operation and maintenance of units 1 to 8 and 20% from among the employees in the construction units of 9 and 10 would constitute a valid basis. The remaining point is whether the petitioners were absorbed in the Corporation on a regular basis with effect from 1-4-1971 though the order was issued on 14-11-1975 followed by another order dated 17-6-1982 in supersession of the earlier order and if the petitioners are entitled to have been absorbed with effect from 1-4-1971 whether they are seniors to respondents-3 to 7 who were absorbed on 1-4-1974 as Operatives in the Corporation on a regular basis.

It is evident from the Government Order dated 17-6-1982 which was passed in supersession of the order dated 15-11-1975 that all the regular Ex-H.E.C.P. employees whose names are indicated in Annexures ''A'' and ''B'' to the order were transferred and deemed to have been so transferred to the Corporation with effect from 1-4-1971 for absorption in the services of the Corporation with effect from the said date. The order is self-explanatory. The language used is unambigous and explicit. The clarity of the language does not admit any scope for interpretation except to say that the petitioners whose names are found in the annexures referred to in the said order came to be absorbed in the Corporation with effect from 1-4-1971. This position is manifestly clear both de facto and de jure. As against this position, it is nobody''s case that respondents-3 to 7 were not absorbed in the Corporation with effect from 1-4-1974. Thus there is a distance in terms of time of 3 years between the date on which the petitioners were absorbed in the Corporation and respondents-3 to 7 were also absorbed in the Corporation. Though it is contended by the learned counsel appearing for respondent-2 that it is the date of the order that should be taken into account in preference to the wordings that the absorption takes effect from 1-4-1971, I do not think that that was the intention of the Government when the order was passed and if that was the intention, the order would not have indicated retrospective effect in specific terms. The order is categorical without any qualifying condition. Similarly the order of absorption relating to respondents-3 to 7 was passed with effect from 1-4-1974. The factual position is beyond dispute. I have no hesitation in holding by looking into the relevant dates of absorption as between the petitioners and respondents-3 to 7, that the petitioners came to be absorbed much earlier to respondents-3 to 7 in the Corporation and to deny seniority to the petitioners would not be reasonable. The inescapable fact is that both the petitioners and respondents-3 to 7 belong to the same category, viz., Operatives in the Corporation. There is no further distinction in the category of Operatives and in other words there cannot be a division among Operatives. The nature of the duties and functions of the Operatives cannot but be the same, be it the petitioners or respondents-3 to 7. In these circumstances, it would not be either unreasonable or unfair to judge the seniority on the basis of date of absorption into the posts in the Corporation as between the petitioners and respondents-3 to 7. Though it is provided in Clause 2.2 of Annexure-C that the absorption of the petitioners are without prejudice to the instructions/orders issued by the Corporation on any other service conditions of these employees, I am unable to find any instructions or orders issued by the Corporation or any other service conditions ruling at the relevant time which come in the way of the presumption that the petitioners though absorbed into service with effect from 1-4-1971 cannot be permitted to have seniority over respondents-3 to 7 even though the latter were absorbed into service with effect from 1-4-1974. Except the seniority list showing respondents-3 to 7 placed higher than the petitioners, there is no material on record to subscribe to the view that either the Government''s instructions or the service conditions of the relevant point of time precluded the petitioners from being regarded as not seniors to respondents-3 to 7. My finding applies with equal force to Clause 3 of Government Order No. PWD 211 PPC 81, dated 17-6-1982 wherein it is provided "These orders do not modify the orders/instructions of the, K.P.C.L. issued from 1-4-1971 on any other service conditions of these employees".

I certainly would have reconciled with the vehemental argument of the learned counsel appearing for respondent-2 that based on agreement which is described as "unsigned understanding" that conditions of service underwent a transformation but for the fact the understanding and the document containing the understanding remained a dead letter since it was not signed by the parties to the agreement. It may be unnecessary to speculate why the agreement was not concluded and did not see the light of the day. But I am unable to persuade myself to accept the spirit of the unsigned agreement for the purpose of deciding the seniority of the petitioners with reference to respondents-3 to 7. There can be no doubt that the parties belong to a single undivided category and it would be irrational to disregard the principle of absorption in terms of time giving priority to the earlier absorbees as compared to the subsequent ones. In different circumstances, it may be possible to apply a different yardstick.

For the above reasons, I pass the following order:

These writ petitions are allowed. The final seniority IIst of employees working in Jog personnel units as on 31-12-1982 issued on 2-5-1983 bearing No. LSP.1 A1 in so far as it relates to the petitioners vis a vis respondents-3 to 7, is quashed. The Karnataka Power Corporation Limited is directed to prepare a fresh seniority list placing the petitioners above respondents-3 to 7 and to confer all the consequential benefits to the petitioners which should have been available to them had they been promoted on the date when respondents-3 to 7 were promoted. The Corporation is directed to implement the order of this Court within three months from the date of receipt of a copy of this order.