Sh. Ajit Singh vs HPSEB and Others

Deepak Gupta, J.—This writ petition is directed against the order passed by the H.P State Administrative Tribunal in O.A No. 57/87.

Briefly stated the facts of the case are that the petitioner was initially recruited as Beldar with the H.P State Electricity Department (hereinafter referred to as the ''Board'') in 1979 in Baijnath Division. He was thereafter promoted as Assistant Lineman in the same Division. It is not disputed that the petitioner made a request for being transferred to Dharmashala Division. He was transferred at his own request vide order dated 25/30.6.1984. The petitioner thereafter was placed at the bottom of the seniority list in the category of Assistant Lineman in Dharamshala Circle. It appears that a provisional seniority list of Assistant Lineman was circulated in March 1985. Thereafter, the petitioner made a representation on 26th April, 1985 that he had never agreed to forfeit his seniority and that he was not aware that in case of his transfer on his request, he would have to forfeit his seniority and be placed at the bottom of the seniority list in the Circle/Division to which he was transferred. The petitioner made repeated representations and finally sent a legal notice which was replied by the Board on 27th September, 1986. Thereafter, the petitioner filed O.A No. 57/87 in the Tribunal. The Tribunal rejected the O.A mainly on the ground that the O.A has been filed on 6th March, 1998 while the cause of action had arosen on 15th July, 1985. Even on merits the Tribunal held that the applicant had no case. This order is under challenge in the present writ petition.

We have heard Sh. Vikas Bhardwaj, learned Counsel for the petitioner and Sh. Baldev Singh, learned Counsel for the Board.

As far as the finding of the learned Tribunal that the Original Application was barred by limitation is concerned, we are of the considered view that the Tribunal totally mis-directed itself in this behalf. According to the Tribunal, the Original Application was filed in March 1998. In fact it was filed in the year 1997 and was thus well within the period of limitation. We have, therefore, proceeded to decide the matter on merits.

Sh. Bhardwaj has urged that the notification dated 14.1.1986 is not in consonance with the Rules and since the same has never been incorporated in the Rules, it cannot be given effect to. He further submits that since in terms of this notification, no note was put in his transfer order that he would loose his seniority, he could not be denied the benefit of the service rendered by him in the Baijnath Circle. He lastly contends that it is settled law that a person cannot be denied the benefit of the length of service rendered by him in the previous Division prior to his transfer. To appreciate the arguments of the learned Counsel for the petitioner, it would be appropriate to refer to the relevant portion of the notification dated 14.1.1976 which reads as under:

Office Memorandum

Consequent upon the notification of the Recruitment and Promotion regulations of the Technical Posts (Field), the staff borne on a particular Divisional/Circle Level cadre are not liable to the transferred to another Divisional/Circle level cadre. The case as to how the seniority of such technical staff (field who approach for transfer to the places of their choice under another Divisional/Circle cadre is to be determined was under consideration of the Board.

The Himachal Pradesh State Electricity Board after careful consideration is pleased to decide that the transfer of the technical staff (field) borne on Divisional/Circle level cadre may be ordered by the competent authority subject to their losing seniority in the Division/Circle from which they are transferred. Their seniority is to be dove-tailed at the end of the seniority list of their corresponding cadre of Division/Circle to which they are transferred.

A note to this effect may also be made in the transfer orders;

Sd/- Secretary, H.P. State Electy. Board, Shimla-4.

A perusal of this notification clearly shows that as per the Recruitment and Promotion Rules, the field or technical staff borne on a particular Division/Circle cadres could not be posted out of their Division/Circle. In case of any request made for transfer outside the Division/Circle, the employee would loose his seniority and would be placed at the bottom of the seniority list of the corresponding cadre in the Division/Circle to which he/she was transferred on his/her own request.

In our view, the notification admits of no other interpretation. The only interpretation which can be given is that when a person wants to get transferred out of the cadre whether Divisional or Circle and goes to another Division or Circle, he is bound to loose his seniority and be placed at the bottom of the seniority list in the new Division or Circle to which he is transferred.

Merely because a note to this effect is not given in the transfer order would not help the petitioner. This memorandum dated 14.1.1976 quoted here-in-above has the force of law. Admittedly the Rules do not permit the transfer of the employees from one Division/Circle to another Division/Circle. It is only this office memorandum which permits the same and the office memorandum lays down the conditions for transferring an employee outside his Division/Circle. An employee cannot plead ignorance of law. Furthermore, once an employee seeks his transfer from outside his Division/Circle, he must rank junior to the person in the other Division/Circle because they cannot suffer only because one employee has been transferred at his own request outside his cadre.

Sh. Bhardwaj has relied upon a number of judgments namely K. Madhavan and Anr. v. Union of Indian and Ors. 1987 2 SC 2291, Jaswant Singh v. State of Punjab and Anr. 1989(6) SLR 178 , Govind Prasad Vs. R.G. Parsad and Others, and Union of India and others Vs. C.N. Ponnappan,

As far as Ponnappan''s case is concerned, it was held by the Apex Court that the service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service and must be taken into account while considering his eligibility for promotion at the place where he has been transferred. There can be no quarrel with this preposition of law. When a person is to be considered for promotion, two factors have to be taken into consideration. (i) whether he fulfils the eligibility criteria and (ii) whether he falls within the zone of consideration. In case the service rendered by the petitioner in the Baijnath Division is taken into consideration, he may fulfil the eligibility criteria but since he is at the bottom of the seniority list, he will not fall in the zone of consideration. These two aspects are entirely different. It is not as if the petitioner''s service in Baijnath Circle is to be ignored while considering his eligibility. But the effect of the notification quoted here-in-above is that he has been placed at the bottom of the seniority list in the cadre of ALMs in Dharamshala Circle and thus did not fall within the zone of consideration. He may fulfil the eligibility criteria but he does not fall within the zone of consideration. The other judgments are on similar lines and we need not refer to them in detail.

Keeping in view the aforesaid discussion, we find no merit in the petition which is accordingly rejected. No order as to costs.