J. Uppendra Reddy and Others vs A.P.S.E.B. and Others

These writ petitions relate to the fixation of i the seniority of the petitioners.

The petitioners in W.P. Nos. 15953/1992 and 4133/1992 were originally appointed in the s ''Lower Sileru Hydro Electric Scheme''. The petitioners of the other cases were originally appointed in the ''Kothagudem Thermal Power Station''. Subsequently, it was found they were surplus in the original circles and the Board decided that such surplus staff must be diverted starting from the junior most person to various other Circles. However, the seniority and the lien were continued to be maintained in the parent Circles only. Accordingly, transfer orders is were issued which specifically stated that certain parts were diverted from the parent Circle to the other Circles and the persons are posted to those Circles against such posts. It was further specifically stated that their transfer is according to Regulation 10(iii) of A.P.S.E. Board and the Superintending Engineer, Civil Circle, Donkarayi can transfer them back to L.S. Project whenever found necessary and no choice would be left to them, and their seniority will be maintained in L.S. Project only. Thereafter, the names of these petitioners did not find place in the seniority list of the Circles in which they were working and they were agitated and represented for absorption in the Circles in which they were working. The Board issued BPMS No. 309 dated September 29, 1991 stating that the original intention was to retrench the surplus staff and only on compassionate grounds they had been transferred to the other Circles, that several writ petitions had been filed and the general issue for absorption, was therefore, taken up for consideration. The Board stated that the petitioners, therefore, had no legal right to claim seniority from the date of the original appointment as it would affect the existing employees, but at the same time, in order to benefit them, an option will be given to absorb the petitioners and fixing their seniority below employees in the existing categories as on August 1, 1991. It was stated that those who do not give the consent for absorption, will be deemed to he absorbed from that date. But those who refused to opt may be transferred back to the parent Circle. The petitioners protested and made representations against this decision claiming that it was wholly arbitrary and against the provisions of the Regulation 10 (iii) of A.P.S.E.B Service Regulations. Since there was no response from the Board, but on the contrary, orders were passed deeming the as petitioners to be absorbed from August 1, 1991, these writ petitions have been filed.

The learned Counsel for the petitioners submitted that the Board''s Regulations specifically provided that the seniority of a member, who is transferred on administrative grounds, will be fixed with reference to the date of his first appointment and since the transfer orders specifically referred to the Regulation 10 (iii) and also stated that the transfer was on administrative grounds, the decision to give the seniority with effect from a later date was invalid. The learned Counsel for the petitioners also relied on the decision of the Supreme Court in the case of Vasant Kumar Jaiswal Vs. State of Madhya Pradesh,

On the other hand, the learned Counsel for the Electricity Board submitted that the transfer orders also specifically preserved the lien and the seniority in the parent Circle, and hence, it was as if the petitioners have been sent on deputation and they could get their seniority only from the date of absorption. He further submitted that such a decision had already been taken in Memo dated November 25, 1988 stating that it is only the date of acceptance of transfer which will be a crucial date for absorption. He pointed out that the petitioners were actually surplus staff and but for the transfer they would have lost their jobs, and therefore, they could not ask for absorption from the date of the appointment.

Service Regulations of the Board classifies the services as (a) Andhra Pradesh State Electricity Board Personnel & General Services; (b) Andhra Pradesh State Electricity Board Engineering Service; (c) Andhra Pradesh State Electricity Board Accounts Service; (d) Andhra Pradesh State Electricity Board General Services; (e) Andhra Pradesh State Electricity Board Security Service; (f) Andhra Pradesh State Electricity Board Educational Service and (g) Andhra Pradesh State Electricity Board Medical Service. Regulation 10 of A.P.S.E.B. Service Regulations states that for the purpose of recruitment, the Units of recruitment in any service shall be as specified and clause (c) states that for Class-III posts, the Unit of operation will be a Circle. The Lower Sileru Hydro Electric Scheme and the Kothagudem Scheme were treated as two such Circles. A note to that Rule states a separate seniority list will be maintained by the Appointing Authority for each unit of operation. Sub-clause (iii) is as follows :

"The seniority of member of a service who is so transferred on administrative grounds from one unit of operation to another unit shall be fixed in the latter unit with reference to the date of his first appointment in the former unit."

Sub-clause (iv) is as follows :

"A member of a service, who is transferred at his own request from one unit to another, shall have his seniority fixed in the latter unit with reference to the date of his first appointment in that unit."

The distinction between these two sub-rules is that a person seeking transfer will have to forego his seniority while entering the other Circle as his seniority will be counted only from the date of his transfer. In contrast, a person, who is transferred on administrative grounds, will retain his seniority within the new Circle also from the date of his initial appointment.

The bone of contention in this case is that according to the petitioners, they did not seek the transfer and since sub-clause (iv) cannot be applied, they are entitled to the seniority from the date of the initial appointment under sub-clause (iii). However, the case of the Board is that even though they did not claim the transfer, they would have been retrenched but for the transfer, and therefore, in order not to adversely affect the existing employees of the other Circles, they were to be given seniority only from the date of absorption. The learned counsel for the petitioners submits that there is no Regulation which enables the Board to transfer any employee other than Regulation 10(iii), and therefore logically the benefit of 10(iii) will accrue to the employee concerned. The learned Counsel for the Board referred me to the Regulation 17 which provides that a member of a class of service may be required to serve in any post borne on the cadre of such class of service and in any place of duty as the exigencies of the administration require. He argued that this will enable the Board to temporarily transfer any employee from one Circle to another Circle because even the Circles are part of the services and consequently they will be retaining their lien and seniority in the parent Circle. The learned Counsel for the petitioners submitted that the employees are all only employees of the Board and the seniority has to be maintained inter se only according to the date of appointment and the question of foregoing seniority can never arise except under Regulation 10(iv).

I am unable to accept this contention. Even though all the employees were serving only in the Board, the Regulations themselves provide for treating each Circle as a separate operating unit for recruitment and service conditions. The Board, was therefore, entitled to maintain a separate seniority list for each Circle. The petitioners, cannot therefore, claim that wherever 15 they are working their seniority will be only according to the date of initial appointment.

The only question now is whether the petitioners are entitled to the benefit of Regulation 10(iii) for retaining the seniority even though the transfer orders specifically stated that their lien and seniority will be retained in the parent Circle. I find that these words in the transfer orders made it an exception to the general rule. I also find that because of Regulation 17, the Board had the power also to make such temporary transfers in order to properly utilise the services of those who were surplus without retrenching them. At the same time, once they were transferred, it cannot be said that they will become juniors to even those who were appointed in the new Circles after the date of their transfer. The decision of the Board given in Memo dated November 25, 1988 that the seniority will be counted only from the date of acceptance of the transfer is meaningless and is not attributable either to the Regulation 10(iii) or Regulation 10(iv) even taking into account the power of temporary transfer under the Regulation 17. The decision of the Board to absorb the petitioners only from August 1, 1991 and counting seniority from that date is clearly arbitrary and unsustainable. No doubt, orders of absorption were not passed immediately but once they are transferred and working in the new Circles, any option to be absorbed must be given only from the date of their transfer. The present option given in BPMS No. 309 is really a ''Hobson''s Choice''. This is because when the employee is so told that he will have his seniority only from August 1, 1991 or he has to go back to the parent Circle, there is no real choice, as he will be compelled to go back to the parent Circle unless he accepts the penalty of losing his seniority upto August 1, 1991 for the purpose of remaining in the new Circle. This kind of option was made harsher by the condition that those who do not reply within the time, will be deemed to have accepted the option to remain in the new Circle, foregoing the seniority upto August 1, 1991. It is unfortunate that even though the petitioners had made representations before the due date for exercising the option, there was no consideration of those representations. An option of this is kind is clearly unreasonable and arbitrary.

When these employees were transferred stating that it was on administrative grounds, it was still possible to consider that they were to transferred at their own request as otherwise they were likely to be retrenched. Hence, assuming that the case falls under Regulation 10(iv) in that matter, even though they were entitled to be absorbed from the date of their transfer, they had a legitimate expectation that their absorption cannot be later than the date of the transfer. The learned Counsel for the Board was unable to place before me any Regulation or justification for denying such a legitimate expectation. I am, therefore, of the opinion that the. impugned option letters can be sustained only by substituting the date of absorption by date of transfer in each of the employee''s case, for fixing their inter se seniority in the new circle; otherwise, the impugned order has to be quashed altogether.

In the circumstances, in the interest of justice, I declare that in accordance with the Regulation 10 (iv) which is the appropriate Regulation applicable to the facts of this case, the petitioners who have not opted to go back to the parent circle, shall be deemed to be absorbed in the Circles in which they are now functioning from the date of their transfer to that Circle and a fresh seniority list for each of the Circles in which the petitioners were working, shall be made in accordance with such absorption, which shall also be the basis for promotions.

With this declaration, the writ petitions are allowed. No costs.