Full Judgment Text
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PETITIONER:
THE ORISSA ELECTRICAL ENGINEERS’ SERVICE ASSOCIATION
Vs.
RESPONDENT:
STATE OF ORISSA & ORS.
DATE OF JUDGMENT: 19/12/1997
BENCH:
G.T. NANAVATI, K. VENKATASWAMI
ACT:
HEADNOTE:
JUDGMENT:
THE 19th DAY OF DECEMBER, 1997
Present:
Hon’ble Mr. Justice G.T. Nanavati
Hon’ble Mr. Justice k. Venkataswami
Dr. Rajeev Dhawan, Sr. Adv., A.P. Dhamija, S.K. Jain,
Pradeep Aggarawal, N.B. Khatiwada, Umesh Bohara, Advs. with
him for the appellant
V.R. Redday, Additional Solicitor General, G.L. Sanghi,
Jayant Das, Sr. Advs. , R.K. Mehta, Manachakraborty, M.G.
Ramachandran and Rajkumar Mehta, Advs. with them for the
Respondents.
J U D G M E N T
The following Judgment of the Court was delivered:
NANAVATI.J.
Leave granted. Heard the learned Counsel.
The Orissa Electrical Engineers’ Service Association
filed Original Application No. 576[C] of 1996 in the Orissa
Administrative Tribunal, apprehending that some of the
Electrical Engineers who are its members and Orissa State
Government employees on deputation to the Orissa State
Electricity Board (OSEB) are Likely to be permanently
transferred to the GRID Corporation of Orissa Ltd. or Orissa
Hydro Power Corporation Ltd. on OSEB being abolished, under
orissa Electricity Reform Act. In view of the Provision of
the Act and the decision of the State Government to
privatise procurement and distribution of electric energy
the appellant further apprehended that the services of Such
members may be ultimately transferred to private companies
and that will lead to losing their status as civil servants
and varying their service conditions adversely. The
appellant, therefore, wanted Section 23,24 and 25 of the Act
and Scheme Rules made thereunder to be declared ultra vires
the Constitution.
The Tribunal held that it has no jurisdiction to judge
the validity of the said provisions. It further held that
the provisions regarding transfer of personnel appear to be
reasonable. it was also of the view that the OA was rather
premature. It, therefore, dismissed the OA.
Dr. Dhawan, learned counsel for the appellant submitted
that section 24 which empowers the State Government o
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forcibly transfer personnel from one employer to another
without giving them an option or obtaining their consent, in
ultra vires the relevant provisions Constitution of India.
He has also raised some contentions in the alternative,
including the contention that the State Government has
failed to ascertain the willingness of the personnel of the
State Government sent on deputation to OSEB in accordance
with Sub-rule (7) of Rule 9 of the Orissa Electricity Reform
Scheme Rules, 1996. As we are accepting this last
contention, we don not think it necessary to decide
correctness or otherwise of the other contentions.
By its letter dated 2.12.1996, addressed to the
personnel of all the cadres on deputation to the OSEB the
State Government called for their preferences for permanent
absorption in GRIDCO/OHPC. It was stated in the said letter
that "In the light of the above and in terms of Sub-rule (7)
of Rule-9 ibid, the Department of Energy, State Government
invite the employees to send their preferences for
absorption in GRIDCO or OHPC or in the State Government. The
format in which the willingness and preference are to be
given is enclosed. Please fill up the same and make sure
that it is sent by post...... In case your preference does
not reach us by the stipulated date, your case will be
decided on the assumption that your first preference is to
remain in the organisation to which you were provisionally
assigned by operation of the Transfer scheme on 1.4.1996.
The transfer of the personnel shall be decided on the
criteria set forth in Rule 9(7) of the Transfer Scheme
Rules......................... " Relevant paragraphs in the
format read as under:
" 1. I have been provisionally
assigned to work under
OHPC/GRIDCO/State Government
(strike out which is not
applicable) by virtue of the
Transfer Scheme framed under
decision of the Sate Government. I
understand that I have been given
an opportunity to indicate my
preference in the matter of my
permanent absorption in OHPC,
Gridco or the State Government
before a final decision on this is
taken. Accordingly, I am furnishing
below my preferences:
.............. Ist Preference
.............. 2nd Preference
.............. 3rd Preference
2. I understand that while due
consideration will be given to my
preferences, a final decision on
the matter will be taken on the
basis of criteria set forth in the
Transfer Scheme, which in addition
to the preferences, will also
include the ability and experience
of the personnel, the number and
nature of vacancies, seniority and
necessity."
On a fair reading of this letter and the format becomes
apparent that what the State Government had thereby tried to
ascertain was the preference and not willingness of such
employees to remain in the service of the State Government
or to get permanently absorbed in GRIDCO or OHPC. The
employees were told that their preferences in the matter of
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permanent absorption in OHPC, GRIDCO or the State Government
would considered before taking a final decision in the
matter. The employees were not told in clear terms to
express their willingness to be permanently absorbed in
GRIDCO or OHPC or to revert to the service of the State
Government. The fact that the State Government retained with
it the power of taking a final decision in the matter
clearly indicates that it wanted to ascertain preferences
only. Otherwise, it having decided to go by the willingness
of the employees on deputation as reflected in Rule 9(7),
would not have stated so in its letter. The record also
discloses that a large number of such employees had
expressed their intention to revert to the State Service and
yet they have not been taken back on the found that only
limited number of posts in the State Cadre are available.
We, therefore, hold that the State Government has failed to
ascertain from the State Government Electrical Engineers on
deputation with OSEB, the willingness contemplated by Rule
9(7) of the Rules. We also hold that further actions taken
or orders passed on the basis of such ascertainment of
willingness are bad and, therefore, of no effect.
We, accordingly allow this appeal and direct the State
Government to consider willingness of the Electrical
Engineers, who are State Government employees on deputation
with OSEB, to revert to the Stat Service or to get
permanently absorbed in GRIDCO or OHPC afresh. As a long
time has elapsed and it would not be desirable to reopen the
cases of all of such employees, we direct that those
Electrical Engineers on deputation with OSEB who desire not
to get absorbed in the Services of GRIDCO or OHPC and to
revert to the State Service shall write to the State
Government through principal Secretary, Dept of Energy to
take them back in State Service according to their lien,
before 15th January, 1998 and we further direct the State
Government to deal with their cases in accordance with law.
In case no such intimation is given by any of those
Electrical Engineers it will be open to the State Government
to proceed on the basis that the concerned employee is
willing to remain where he is and get absorbed in the
services of GRIDCO or OHPC as the case may be.
The appeal is accordingly disposed of with no order as
to costs.