Full Judgment Text
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PETITIONER:
STATE OF ANDHRA PRADESH AND V. RANGA RAOAND ORS.
Vs.
RESPONDENT:
K. RANGANATHAN AND ORS. AND THE STATE OFANDHRA PRADESH AND O
DATE OF JUDGMENT21/08/1990
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
AGRAWAL, S.C. (J)
CITATION:
1990 SCR (3) 912 1990 SCC (4) 636
1990 SCALE (2)315
ACT:
Civil Services: Andhra Pradesh State and Subordinate
Service Rules--Rule 22(ii)(c)--Deletion of--Junior Engi-
neers--Transferred to Electricity Board--Seniority
List--Revised by Government--Validity of--G.O.Ms. No. 1166
dated 7. 11. 1973--Interpretation of.
HEADNOTE:
The appellants and the respondents who were originally
appointed as Junior Engineers in the Andhra Pradesh Elec-
tricity Subordinate Service, were subsequently transferred
along with other Junior Engineers to the State Electricity
Board with effect from October 1, 1973 on the basis of
options exercised by them to join the Board. in response to
G.O.Ms. No. 1651 dated 28.12.1972. The terms and conditions
of transfer were stipulated in G.O.Ms. No. 1166 dated
7.11.1973.
On the date of transfer, the seniority list of the
Junior Engineers had not been finalised. However a seniority
list prepared by the State Public Service Commission, taking
into account the deletion of rule 22(ii)(c) of the Andhra
Pradesh State and Subordinate Rules with retrospective
effect from April 1, 1964, had been circulated among the
concerned Junior Engineers for objections, if any, and most
of them. including the petitioners and respondents, had
submitted their objections before October 1, 1973.
After the transfers were effected, the State Electricity
Board prepared a revised seniority list but the High Court
struck down the same on the ground that the Board had no
power to alter the seniority of the transferred employees,
whose seniority was fixed by the Government. However, it
observed that if the Government had retained any power under
the transfer order it would be at liberty to revise the
seniority list.
In view of the aforesaid observations, the Government
issued show cause notices once again to all the persons
belonging to backward classes (the respondents) for revising
the seniority.
913
In a writ petition filed by the respondents for re-
straining the Government from revising the seniority, a
Single judge of the High Court, upheld the power of the
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Government to revise the seniority list. During the pendency
of appeal before the Division Bench, the Government issued a
final revised seniority list, vide G.O. No. 233 of May 23,
1981. Thereafter, the Division Bench quashed the revised
seniority list on the grounds that there was a declaration
in G.O. of November 7, 1973 that the exercise of the option
was final, and since the Government and the Board had acted
upon the option exercised by the employees and transferred
them from Government service to the service of the Board,
they were estopped from revising the seniority and similar-
ly, the employees were estopped from claiming that their
seniority should be revised on any grounds whatsoever, that
since the transfers were on "as is" basis which included
seniority, the seniority could not be disturbed on any
ground whatsoever, that the Government had no power to alter
the seniority of the employees after October 1, 1973 since
they had ceased to be Government employees, and the power
given under Rule 36A of the Rules to review the seniority
could not be exercised to rectify the mistake, and that
merely because the Board had no jurisdiction to disturb the
seniority so fixed, it did not follow that the Government
continued to have jurisdiction in respect of those employees
who were no more its employees. This decision was challenged
in the appeals before this Court.
Allowing the appeals, this Court,
HELD: 1.1 The Government had reserved the power, as it
had every right to do so, to change the seniority of the
employees as on October 1, 1973 or prior to that date when
they were employees of the Government. It had not reserved
the power, as it could not, to change the seniority of the
employees after October 1, 1973. Even if it so willed, it
could not have reserved power to change the seniority of the
employees after October 1, 1973. Conversely the Government
had always the power to revise the seniority list of the
employees as on October 1. 1973 on account of reasons accru-
ing prior to the said date. To do it, it was not necessary
for it to reserve any power, for it had inherent power to do
so. [925B; 924H; 925A]
1.2 By a mere reading of two Government Orders, and
particularly, G.O. No. 1166 it is clear that seniority of
the appellants as on October 1, 1973 was liable to be re-
vised by the Government at any time. Clause (3) of paragraph
6 makes it clear that the names in the Annexure sent along
with the order were not arranged in the order of seniority,
914
and did not. therefore, confer any right for seniority on
that basis. This shows that the Government had not finalised
the seniority list and the list which was sent to the Board
with the said order was a provisional one. The Government
had to say so. because, admittedly, as on that day the
seniority of the employees was in a flux on account of
various reasons. viz., non-receipt of options of non-gazet-
ted technical staff and pendency of appeals of the gazetted
technical staff, like the appellants and non-technical staff
against the Common Gradation Lists prepared as per the
recommendations of various committees with reference to
seniority position between November 1, 1956 and October 1,
1973, sequel to reorganisation of the States and amalgama-
tion of different regions in the State. Besides. the Govern-
ment could not have ignored the position that as on October
1, 1973 the dispute with regard to the seniority of the
appellants and the respondents was pending in the High Court
right from November 1966 when, 10 Junior Engineers including
some of the present appellants had filed Writ Petition
giving rise to further proceedings. In these circumstances,
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it cannot be held that whereas the Government reserved power
and could reserve power to revise the seniority list on
account of the disputes about seniority arising out of the
States re-organisation and/or on account of the non-receipt
of options of the non-gazetted technical staff etc.it did
not or could not reserve such power to meet the situations
arising out of the orders of the courts in the disputes
pending between the appellants and the respondents. There-
fore, even if no such powers were specifically reserved in
the said Government order, the Government would have been
obliged to revise the seniority list to comply with such
orders. [923B-H; 924A]
1.3 Since the Government had not sent the list of the
employees to the Board arranged according to seniority, the
expression "as is" in clause (3) of paragraph 6 of the
Government Order in the circumstances referred to service
conditions other than seniority. Even if the word "etc" at
the end of clause (4) was construed to exclude the dispute
with regard to seniority pending in the court, that would
not have exempted the Government from complying with the
orders of the Court. To hold that the Government by its own
order, such as the present one, could prevent operation of
the order of any court is to invite conflict in the juris-
diction of the executive and the judiciary. Similarly, the
Government could not have forced the employees to accept the
term with regard to the seniority as an immutable one. In
fact the said Government Order did not lay down any such
term. Hence, it cannot be said that the appellants had
accepted the seniority as was forwarded by the Government to
the Board and they were estopped thereafter from agitating
against it. The decision of the Court being the law, no plea
of
915
estoppel could be raised against it. [925C-F]
1.4 It is well-settled that there cannot be a right
without a remedy. Law abhors such vacuum. But, there are two
periods with respect to which the power to alter seniority
has to be examined. The first period is upto October 1, 1973
and the second commences thereafter. In the first period,
there was a relationship of employer-employee between the
Government and the transferred employees. Hence, the Govern-
ment had every right to correct or amend the seniority of
the employees upto that date. If, therefore, the Government
had advertently or inadvertently committed any error in
preparing the seniority list upto October 1, 1973, or be-
cause of the decisions of the courts it had to amend the
said seniority list, not only it had power to do so but it
was the only authority which could do it. The seniority list
which was corrected by the Government was the seniority list
as on or before October 1, 1973. [925H; 926A-B]
In the circumstances, the decision of the High Court
suffers from legal infirmities and has to be set aside. The
revised seniority list sent by the Government to the Board
with Government Order No. 233 of May 23, 1981 is restored
and the respondent--Electricity Board is directed to act on
the same. [926C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5336 &
5337 of 1983.
From the Judgment and Decree dated 15.7. 1982 of the
Andhra Pradesh High Court in W.A. No. 194 of 1981.
P.P. Rao, S. Sitaramayya, K. Parasaran, T.V.S.N. Chari,
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Ms. B. Sunita Rao, Ms. Manjula Gupta, B. Parthasarthi, A.
Subba Rao, A.D.N. Rao and K.R. Choudhary for the appearing
parties.
The Judgment of the Court was delivered by
SAWANT, J. These matters have a chequered history. The
appellants as well as most of the contesting respondents
were appointed as Junior Engineers in the Andhra Pradesh
Electricity Subordinate Service on emergency basis between
1959 and 1963. While they were in service on April 24, 1963,
the Andhra Pradesh Public Service Commission (hereinafter
referred to as the "Commission") invited applications for
regular appointment by direct recruitment to 246 posts of
Junior Engineers and on December 21, 1963, the Commis-
916
sion forwarded a list of selected candidates to the State
Government. This list was, however, not arranged according
to merits and therefore according to seniority inter se
among the candidates. On April 15, 1964, the Commission
forwarded to the Government the list of selected candidates
arranging their names according to merits and seniority and
after complying with the reservation prescribed by Rule
22(ii)(c) of the Andhra Pradesh State and Subordinate Serv-
ice Rules (hereinafter referred to as the "Rules") by which
the relevant service was governed. On August 11, 1964, the
State Government amended the said Rules by deleting the said
Rule 22(ii)(c) with retrospective effect from April 1, 1964.
This amendment was effected to comply with the decision of
this Court in M.R. Balaji & Ors. v. State of Mysore, AIR
1963 SC 649--[1963] Supp. 1 SCR. In spite of the fact that
the Rules were so amended on August 11, 1964 with retrospec-
tive effect, the State Government on April 29, 1965 gazetted
the list of selected candidates as was sent to them by the
Commission on April 15, 1964. The result was the list as
gazetted was in breach of the said Rules. After the gazette
notification, on April 29, 1965, the Chief Engineer of the
Government appointed all the said candidates to the posts of
Junior Engineers who included the appellants and the re-
spondents and others according to the order of seniority
communicated by the Commission. The candidates so appointed
were put on probation for a total period of two years.
2. The seniority as notified in the said list was chal-
lenged by a Writ Petition No. 2 146 of 1966 in the High
Court of Andhra Pradesh in November 1966 by 10 Junior Engi-
neers belonging to the non-reserved category on the ground
that the same was in breach of law since it was contrary
both to the said decision of this Court as well as to the
Rules as they stood amended on August 11, 1964 w.e.f. April
1, 1965. The learned Single Judge disposed of the said Writ
Petition on the assurance of the Government contained in
their Memo. No. 3373 E/70 dated July 17, 1970 addressed to
the Government Pleader that the seniority list would be
revised in compliance with the amended Rules so far as the
petitioners were concerned. Unfortunately, the learned Judge
did not appreciate the discrimination to which the said
assurance was to lead, since the assurance related only to
the petitioners before him and had excluded the rest of the
Junior Engineers similarly situated. The matter, however,
rested there.
On December 28, 1972, the State Government gave an
option to all the Junior Engineers including the petitioners
and the respondents to choose between the government service
and a permanent
917
transfer to the Andhra Pradesh State Electricity Board.
4. Before the transfers could be effected, it appears
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that there was a correspondence between the Government and
the Commission for changing the seniority list pursuant to
the assurance given by the State Government to the learned
Single Judge. The Commission opined that the seniority list
could not be altered in respect of only 10 petitioners in
the said Writ Petition and had to be altered in respect of
all the candidates selected, to comply with the amended
Rules. Accordingly, the Commission on June 27, 1973 sent the
corrected seniority list to the State Government. The Gov-
ernment accepted the said list, and on July 23, 1973 direct-
ed its Chief Engineer to circulate the said revised list and
to invite objections to the same within a stipulated period.
’Accordingly, the Chief Engineer by his Memo. dated August
8, 1973 circulated.the said seniority list and invited
objections from all the concerned Junior Engineers. Most of
them including the respondents submitted their objections by
October 1, 1973 on and from which date those of the Junior
Engineers including the petitioners and respondents who had
exercised their option to join the Electricity Board, were
transferred to the Board.
5. The Government transferred the Junior Engineers who
had opted for service with the Board by its Order of Novem-
ber 7, 1973 w.e.f. October 1, 1973 as stated above. That
order being G.O.M. No. 1166 assumes importance in the
present case since the contents of paragraph 6(3) and 6(4)
of the said document are relied on by the High Court as well
as both sides in support of their respective contentions.
The said contents may be reproduced here at the outset:
"6(3). The transfer is on ’as-is’ basis and the names in the
Annexure are not arranged in the order of seniority on that
basis;
6(4). On transfer to the Andhra Pradesh State Electricity
Board, the individuals will carry with them the seniority as
it existed under Government as on 1.10.73 without prejudice
of the seniority of the persons referred to in sub-para (1)
above, who may be transferred to the Board by a subsequent
order of the Government and the seniority with reference to
the position between 1.11.1956 to 1.10.1973 is liable to be
altered by Government at any time with reference to pending
appeals on Common Gradation Lists or with reference to the
recommendations of High powered
918
Committee, State Advisory Committee, Central Advisory Com-
mittee etc."
6. On November 5, 1974, the Chief Engineer of the Elec-
tricity Board (to which the petitioners and respondents had
stood transferred permanently from October 1, 1973) after
considering the representations against the seniority list
received from the affected Junior Engineers, issued a re-
vised seniority list. This seniority list was challenged by
the respondents and others who belonged to backward classes
by a Writ Petition No. 6084/74 filed in the High Court in
May 1972. The learned Single Judge who tried the said writ
petition, by his order of March 29, 1978 struck down the
said list on the ground that the Chief Engineer of the
Electricity Board had no power to alter the seniority of the
transferred employees whose seniority was fixed by the State
Government. However, he observed that if the Government had
retained any power under the transfer order and if it was so
advised, the Government would be at liberty to revise the
seniority list. Aggrieved by the said order the petitioners
on August 25, 1978 preferred an appeal before the Division
Bench of the High Court dismissed it.
7. In view of the observations made by the learned
Single Judge, the Government on August 23, 1979 issued
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show-cause notices once again to all the persons belonging
to backward classes (the respondents) to show cause why
their seniority should not be revised as per the assurance
given by the Government to the High Court while disposing of
Writ Petition No. 2 146/66. Some of the respondents replied
to the show-cause notice on November 18, 1979 and some of
them filed a Writ Petition in the High Court being Writ
Petition No.2 15 of 1980 on December 7, 1979 for restraining
the Government from revising the seniority pursuant to the
show-cause notice. At the same time, in February 1986, some
of the petitioners in Writ Petition No. 2 146/66 filed Writ
petition No. 582/80 before the High Court for seeking a
direction to the Government to implement the assurance given
by it while disposing of the said Writ Petition. The learned
Single Judge by his decision of February 5, 198 1 dismissed
the respondents’ petition upholding the power of the Govern-
ment to revise the seniority list, and in view of the said
order passed in respondents’ writ petition, no orders were
passed in the petitioners’ petition.
8. Aggrieved by the said decision, the respondents
preferred an appeal on March 30, 198 1 to the Division
Bench. Since no stay was granted pending the appeal, the
Government by its order dated May
919
26, 198 1 issued a final revised seniority list after con-
sidering the representations of the persons belonging to the
backward classes including the respondents. Thereafter on
July 15, 1982, the Division Bench of the High Court allowed
the appeal of the respondents holding that the Government
had no power to revise the seniority list. It is this deci-
sion which is under challenge.
9. On behalf of the respondents some further connected
developments have been brought to out notice. It appears
that along with the appellants and respondents who were the
Degree holders, some Diploma holders were transferred to the
Board w.e.f. the same date, namely, October 1, 1973. Some of
them had preferred on April 16, 1980 a Writ Petition being
Writ Petition No. 1657/80 before the High Court for a direc-
tion to the Government to prepare a seniority list of As-
sistant Engineers who were appointed from June 15, 1963 in
accordance with the statutory Rules and to communicate the
same to the Board. On April 16, 1982, a learned Single Judge
allowed the said petition upholding the plea that the said
order No. 1166 dated November, 7, 1973 had given powers to
the State Government to settle the seniority of the trans-
ferred employees as on October 1, 1973. This decision was
upheld in appeal by a Division Bench of the High Court by
its decision of March 26, 1987. The Special Leave Petitions
Nos. 8044 and 10783 of 1987 preferred against the said
decision were dismissed by this Court on October 30, 1987
and this Court directed the Board to implement the order of
the High Court subject to any decision which may be rendered
by this Court in the present appeals. On August 4, 1989, the
State Government communicated the seniority list of the
Assistant Engineers to the State Electricity Board and the
Board is acting on the same. The result is that whereas the
petitioners, namely, the Diploma holders in the said Writ
Petition No. 1657/80 are the beneficiaries of the revised
seniority list, the present appellants are not.
10. The High Court has quashed the revised seniority
list on .three grounds. The first ground is that the employ-
ees having exercised their option under the Government
Orders Nos. 1651 and 1166 dated December 28, 1972 and Novem-
ber 7, 1973 respectively subject to the terms and conditions
mentioned therein, they were estopped from contending that
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the seniority which they carried with them as it existed
under the Government as on October 1, 1973 cannot be contin-
ued further and was liable to be disturbed because the rule
of reservation contained in old Rule 22(ii)(c) was declared
by this Court to be violative of Articles 14 and 16 of the
Constitution of India. The High Court
920
further opined that there was a declaration in G.O. No. 1166
of November 7, 1973 which was binding on all the concerned,
viz., the Government, the Board as well as the employees,
that the exercise of the option was final. Since the Govern-
ment and the Board had acted upon the option exercised by
the employees and transferred them from Government service
to the service of the Board, they were estopped from revis-
ing the seniority. So also the employees were estopped from
claiming that their seniority should be revised on any
grounds whatsoever. The second ground given by the High
Court was that the transfer itself being subject to the
terms and conditioned mentioned in the aforesaid Government
Orders which stated that the transfers were on "as is" basis
which included seniority, the seniority cannot be disturbed
on any ground whatsoever. The High Court stated in this
connection that the employees concerned were specifically
notified that the names mentioned in the Annexure were not
arranged in the order of seniority and they were further
notified that the employees would carry with them the sen-
iority as it existed on October 1, 1973, the only exception
being of those employees who were mentioned specifically in
sub-para (1) of paragraph 6 of G.O. No. 1166. Those persons
were non-gazatted technical staff, ministerial and few
others whose options were not received by the Government on
account of the delay in transit or for other reasons. The
High Court negatived the contention that clause 4 of G.O.
No. 1166 which stated that the employees will carry with
them their seniority as it existed under the Government on
October 1, 1973 "without prejudiced to the seniority of the
persons referred to in sub-para (1) above who may be trans-
ferred to the Board by subsequent order of the Government
the seniority with reference to the position between Novem-
ber 1, 1956 and November 1, 1973 was liable to be altered by
Government at any time with reference to pending appeals on
common gradation list or with reference to the recommenda-
tions of High Powered Committee (HPC), State Advisory Com-
mittee (SAC), Central Advisory Committee (CAC) etc." includ-
ed the cases of employees who had made their representations
such as the present appellants who had initiated the pro-
ceedings by Writ Petition No. 2 146 of 1966 and which pro-
ceedings were not finally disposed of even by October 1,
1973. The High Court held that the word "etc." was confined
only to those employees who were affected by the States Re-
organisation Act or by orders on appeal against the Common
Gradation Lists or representations made against the recom-
mendations of the HPC or SAC or CAC which were all matters
referfable to the integration of the services of the Andhra
and Telengana regions consequent upon the re-organisation of
the States. That clause also referred, according to the High
Court, to the revision of inter se
921
seniority list as on October -1, 1973 of other non-gazetted
technical staff, ministerial and few others who may be
subsequently transferred. But it did not refer to any of
those who had already been transferred. According to the
High Court, if that was the intention, the Government would
have specifically stated so. The last ground given by the
High Court was that the Government had no power to alter the
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seniority of the employees after October 1, 1973 since they
had ceased to be the Government employees. According to the
High Court, the power given to the Government under Rule
36-A of the Rules to review the seniority could not be
exercised to rectify the mistake. According to the High
Court, the question was not whether the earlier seniority
list was valid but whether it could be revised and if so, by
which authority. The Government’s power of revising the
seniority list was only in respect of those who were Govern-
ment servants on the date of the revision. The High Court
also held that merely because the Board had no jurisdiction
to disturb the seniority so fixed, it did not follow that
the Government continued to have jurisdiction in respect of
those employees who were no more its employees.
11. To appreciate the reasoning of the High Court, it is
first necessary to reproduce the relevant portions of G.Os.
Nos. 1651 and 1166 of December 29, 1972 and November 7, 1973
respectively:
"G.O. Ms. No. 1651
.......................................................
3. After carefully examining the matter in the light of the
above, the Government consider that in view of the transfer
of the bulk of the electricity projects to the Board and in
view of the fact that the Board is in charge of Electricity
Supply and distribution, it will be appropriate that the
Board should have direct control over the staff and all the
activities of the Board should be managed by the Board
staff. The Government therefore direct that an opportunity
be given to the Government employees working in electricity
supply and maintenance etc., to opt for service under the
Andhra Pradesh State Electricity Board subject to the fol-
lowing Board subject to the following terms and conditions.
The employees on transfer to the Boards:
i. shall cease to be Government servants and shall hence-
forth be the employees of the Andhra Pradesh State Electric-
ity Board.
922
ii. shall be governed by the rules and regulations framed by
the Board in all matters including matters pertaining to
promotions and disciplinary action subject however to (iii)
below and the Andhra Pradesh Civil Service (CC&A) Rules
shall cease to apply to them ...... "
"G.O. Ms. No. 1166
.....................................................
4. With reference to the above orders, the Board and the
Chief Engineer have obtained the options from the officers
referred to in the Annexure to this order, and forwarded
them to the Government.
5. The options exercised by the individuals were carefully
considered by the Government. All the officers mentioned in
the Annexure to this order, have opted to the Board service
in the form prescribed in Annexure I to the G.O. first read
above.
6. In view of the options exercised by the officers, the
Government have decided to and accordingly transfer the
services of the officers, mentioned in the Annexure to this
G.O. to the A.P. State Electricity Board with effect from
1.10.1973 forenoon on the terms and conditions specified in
paragraph 3 above and also those mentioned hereunder:
(1) Orders in respect of the non-gazetted technical staff,
ministerial and of few others whose option forms have not
been received by the Government on account of delay in
transit or for other reasons, will issue separately;
(2) ..................................................
(3) The transfer is on "as is" basis and the names in the
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Annexure are not arranged in the order of seniority and do
not therefore confer any right for seniority on that basis;
(4) On transfer to the Andhra Pradesh State Electricity
Board, the individuals will carry with them the seniority as
it existed under Government as on 1.10.1973 without preju-
dice of the seniority of the persons referred to in sub-para
(1) above, who may be transferred to the Board by a subse-
923
quent order of the Government and the seniority with refer-
ence to the position between 1.11.1956 to (sic.) 1.10.1973
is liable to be altered by Government at anytime with refer-
ence to pending appeals on Common Gradation Lists or with
reference to the recommendations of High Powered Committee,
State Advisory Committee, Central Advisory Committee
etc., ...... "
12. We should have thought that a mere reading of these
two Government Orders and particularly G.O. No. 1166, was
enough to uphold the contention of the appellants herein
that their seniority as on October 1, 1973 was liable to be
revised by the Government at any time. This was so because
firstly, clause (3) of paragraph 6 makes it clear that the
names in the Annexure sent along with the order were not
arranged in the order of seniority, and did not, therefore,
confer any right for seniority on the basis, This shows that
the Government had not finalised the seniority list, and the
list which was sent to the Board with the said order was a
provisional one. The Government had to say so because admit-
tedly on that day the seniority of the employees was in flux
on account of various reasons. In the first place, as stated
in paragraph 1 of the order, the seniority of non-gazetted
technical staff, ministerial and few others whose options
were not received on account of various reasons, could not
have been arranged. As regards the gazetted technical staff
such as the appellants as well as the nontechnical staff,
there were appeals pending against the Common Gradation
Lists prepared as per the recommendations of the HPC, SAC,
CAC etc. with reference to the seniority position between
November 1, 1956 and October 1, 1973. This was a sequel to
the re-organisation of the States and the amalgamation of
the different regions in the State. Secondly, the Government
could not have ignored the position that as on October 1,
1973 the dispute with regard to the seniority of the appel-
lants and the respondents herein was pending in the High
Court right from November 1966 when, as stated earlier, 10
Junior Engineers including some of the present appellants
had filed Writ Petition No. 2 146 of 1966 giving rise to
further proceedings as narrated hereinabove. In these cir-
cumstances, it will indeed be difficult to hold that whereas
the Government reserved power and could reserve power to
revise the seniority list on account of the disputes about
seniority arising out of the States’ re-organisation and/or
on account of the non-receipt of options of the non-gazetted
technical staff etc. it did not or could not reserve such
power to meet the situation arising out of the orders of the
courts in the disputes pending between the appellants and
the respondents herein. According to us, even if no such
powers
924
were specifically reserved in the said Government order, the
Government would have been obliged to revise the seniority
list to comply with such orders.
We are further afraid that the High Court, in this
connection, placed too much emphasis on the expression "the
transfer is on as is basis" and did not read into it what in
the context of the whole order should have been quite obvi-
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ous. Clause 3 of the order itself states that the names
mentioned in the Annexure were not arranged in the order of
seniority and did not, therefore, confer any right for
seniority on that basis. Clause 4 of the order specifically
stated that the seniority was liable to be altered by the
Government at any time with reference to the pending appeals
"etc." Even assuming that the Government by the word "etc."
did not intend to refer to the matters pending in court and
only intended to refer to the appeals arising out of the
recommendations of the concerned committees, it should be
clear to any one that whether the Government reserved such
power or not with reference to the cases pending in courts,
the Government would have been under an obligation to revise
the seniority list to comply with such orders. In the cir-
cumstances, the expression "the transfer is on as is basis"
should have been confined to all service conditions except
the seniority.
We are also unable to understand why the Government
could revise the seniority list of some employees who were
no longer its employees after October 1, 1973 merely because
it had reserved its powers to do so while it had no power to
do so in respect of the other employees merely because it
had not reserved such power. If the ground given by the High
Court for such lack of power in respect of the latter class
of employees is correct, viz., that they had ceased to be
the Government servants, then for the same reason the Gov-
ernment could not have reserved and even if it had reserved,
could not have had the power to change the seniority of the
other employees since both had ceased to be the Government
employees on and from October 1, 1973. If the lack of power
was on account of the severence of the relationship between
the Government and the employees, then whether the Govern-
ment reserved the power or not, the Government could not
have had such power. On the other hand, if Government could
exercise such power merely because it had reserved it, it
could exercise it for any reason whatsoever and for any
length of time even when the employees were not the Govern-
ment servants. We are afraid that the Court failed to appre-
ciate that firstly, even if the Government so willed, it
could not have reserved power to change the seniority of the
employees after October 1, 1973. Conversely, the Government
had
925
always the power to revise the seniority list of the employ-
ees as on October 1, 1973 on account of reasons accruing
prior to the said date. To do it, it was not necessary for
the Government to reserve any power, for it had inherent
power to do so. What is unfortunately lost sight of by the
Court is that the Government had no reserved the power, as
it could not, to change the seniority of the employees after
October 1, 1973. The Government had reserved the power, as
it had every right to do so, to change the seniority of the
employees as on October 1, 1973 or prior to that date when
they were employees of the Government. It is this initial
wrong assumption which, we are afraid, had led the Court to
the wrong conclusion.
13. We have pointed out above that the Government had
not sent the list of the employees to the Board arranged
accordingly to seniority and the expression "as is" in the
circumstances referred to service conditions other than
seniority. We have further pointed out that even if the word
"etc." at the end of clause (4) of paragraph 6 of the said
Government Order was construed to exclude the dispute with
regard to seniority pending in the court, that would not
have exempted the Government from complying with the orders
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
of the court. To hold that the Government by its own order
such as the present one could prevent operation of the order
of any court is to invite conflict in the jurisdiction of
the executive and the judiciary which, we are sure, the High
Court did not intend. But the reasoning of the Court unwit-
tingly and directly leads to such unconstitutional proposi-
tion.
14. For the same reasons, the Government could not have
forced the employees to accept the term with regard to the
seniority as an immutable one. This is a part from the fact,
as pointed out above, that in fact the said Government Order
did not lay down any such term. This being the case, it
cannot be said that the appellants had accepted the seniori-
ty as was forwarded by the Government to the Board and they
were estopped thereafter from agitating against it. It is
unnecessary to state that the decision of the court being
the law, no plea of estoppel could be raised against it.
15. With respect, we are also unable to accept the
reasoning of the High Court that since the Board had no
power to change the seniority list, it could not be said
that the Government had the said power. As a first proposi-
tion, it is well-settled that there cannot be a right with-
out a remedy. Law abhors such vacuum. But, as pointed out
earlier, there are two periods with respect to which the
power to alter seniority has to be examined. The first
period is upto October 1, 1973
926
and the second commences thereafter. In the first period
there was a relationship of employer-employee between the
Government and the transferred employees. Hence, the Govern-
ment had ever? right to correct or amend the seniority of
the employees upto that date. If. therefore. the Government
had advertently or inadvertently committed any error in
preparing the seniority list upto October 1, 1973, or be-
cause of the decisions of the courts it had to amend the
said seniority list. not only it had power to do so but it
was the only authority which could do it. The seniority list
which was corrected by the Government was the seniority list
as on or before October 1, 1973.
16. In the circumstances, we are of the view that the
decision of the High Court suffers from legal infirmities
and has to be set aside. The result is that both the appeals
are allowed. The revised seniority list sent by the Govern-
ment to the Board with Government Order No. 233 of May 26,
198 1 is restored and the respondent-Electricity Board is
directed to act on the same. In the circumstances of the
case, there will be no order for costs in either of the
appeals.
N.P.V. Appeals allowed.
927