The Allahabad High Court has dismissed the special appeal of the Executive Officer of the Electricity Department against transfer and said government orders issued for state government employees will not be applicable to employees of the Vidyut Vitran Nigam Company.
The Division Bench of Justice Anjani Kumar Mishra and Justice Jayant Banerji passed this order while hearing a Special Appeal filed by Rahul Kumar.
The Special Appeal is directed against the order dated 20.08.2024 passed by the Single Judge.
The contention of the counsel for the appellant is that two persons have been transferred to one circle namely Electricity Distribution Circle, Maharajganj and both are Executive Officers. There is only one post of Executive Officer in the Electricity Distribution Circle, Maharajganj. This aspect has not been considered by the Single Judge in the judgement under Appeal while dismissing the petition filed by the appellant.
The second contention raised is that the appellant is an office-bearer of the Union and as per the transfer policy, such person should not be transferred from the place of posting prior to the expiry of two years.
He has referred to the paper book which contains an order where the transfer of a person working at Gopiganj to Sonbhadra was modified on account of the aforesaid policy. He was transferred to the Electricity Distribution Division, Bhadohi, which is in the same District.
It is next contended that the spouse of the petitioner-appellant is also posted in Varanasi and therefore, also the transfer order is bad as the appellant has been transferred to District Gorakhpur from District Varanasi. Normally, transfer should be made to the adjoining district but in the case of the petitioner appellant he has been transferred almost 400 kilometers away.
It is lastly submitted that the son of the appellant is a student of class X and therefore, also the transfer order should not have been passed as the same is likely to prejudice the career of his son.
Counsel for the respondents have supported the order under challenge. Moreover, the submission of Adarsh Bhushan as regards the first submission of the counsel of the appellant, that two persons have been transferred where only one post is available, is that once the mistake was detected, an order was passed on 03.07.2024 granting the second person namely one Sudhir Kumar Singh, additional charge of Electricity Distribution Circle, Nautanwa and therefore, the petitioner-appellant has no reason to be aggrieved.
The judgment under appeal wherein the transfer order of the petitioner-appellant was under challenge has upon consideration of the material on record, the High Court held as under:-
(i) Transfer is an exigency of service and that a person working on a transferable post has no fundamental right or vested right to claim a particular place or station or posting of his choice. For this purpose, reliance has been placed upon the judgment passed by the Single Judge in Union of India v SL Abbas (1993) 4 SCC 357.
(ii) The appellant and the other petitioners before the Single Judge were employees of the Purvanchal Vidyut Vitaran Nigam Ltd., which is a company registered under the Companies Act. Although earlier they were employees of UP State Electricity Board and by Scheme of 2000, they were transferred to the company. Since the company did not frame regulations, the existing service conditions of the Board continued to apply as was provided under the clauses 6(9), (10) and (11) of the UP State Electricity Reforms Transfer Scheme, 2000. Besides, the service rules of employees will be governed under the Contract Law.
(iii) Since no regulations have been framed regarding the transfer of the employees within the DISCOM, the executive instructions issued by the Company will have binding force.
(iv) A transfer order can be challenged only on the ground of violation of a statutory rule or on the ground of mala fides.
(v) There is no requirement of a company registered under the Companies Act to have any statutory regulations and any administrative direction issued by the competent authority has binding force. This has been so held relying upon the Division Bench of this Court in Rajeev Kumar Jauhary v State of UP and others, 2007 (2) AWC 1726 and SK Naushad Rahaman and others v Union of India and others (2022) 12 SCC 1.
The Court said that insofar as the contention that the spouse of the petitioner appellant was posted in Varanasi and therefore, the petitioner should not have been transferred to another district, the said aspect has been considered by the Single Judge in the judgment and reliance has been placed upon the judgment of the Apex Court in Union of India v SL Abbas (1993) 4 SCC 357.
Moreover, the Government orders that have been relied upon by the petitioner in the petition, are with regard to the State Government employees. It is not in dispute that the petitioner is an employee of a Company. Even an employee of a company of which 100 percent share-holding is with the Government is a distinct corporate entity having perpetual seal and succession and therefore, it does not entitled to claim benefit of Government Orders pertaining to transfer where specific administrative/ executive instructions governing transfer exist in the Company, the Court observed.
“In view of the above, we are constrained to hold that not only have the issues raised before the Court been duly considered by the Single Judge in the judgment under Appeal, we do not find any error in the reasoning given while dismissing the petition of the appellant.
In our considered opinion, no good ground exists for interfering in the findings returned in the order under appeal”, the Court further observed while dismissing an appeal.
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The Division Bench of Justice Anjani Kumar Mishra and Justice Jayant Banerji passed this order while hearing a Special Appeal filed by Rahul Kumar.
The Special Appeal is directed against the order dated 20.08.2024 passed by the Single Judge.
The contention of the counsel for the appellant is that two persons have been transferred to one circle namely Electricity Distribution Circle, Maharajganj and both are Executive Officers. There is only one post of Executive Officer in the Electricity Distribution Circle, Maharajganj. This aspect has not been considered by the Single Judge in the judgement under Appeal while dismissing the petition filed by the appellant.
The second contention raised is that the appellant is an office-bearer of the Union and as per the transfer policy, such person should not be transferred from the place of posting prior to the expiry of two years.
He has referred to the paper book which contains an order where the transfer of a person working at Gopiganj to Sonbhadra was modified on account of the aforesaid policy. He was transferred to the Electricity Distribution Division, Bhadohi, which is in the same District.
It is next contended that the spouse of the petitioner-appellant is also posted in Varanasi and therefore, also the transfer order is bad as the appellant has been transferred to District Gorakhpur from District Varanasi. Normally, transfer should be made to the adjoining district but in the case of the petitioner appellant he has been transferred almost 400 kilometers away.
It is lastly submitted that the son of the appellant is a student of class X and therefore, also the transfer order should not have been passed as the same is likely to prejudice the career of his son.
Counsel for the respondents have supported the order under challenge. Moreover, the submission of Adarsh Bhushan as regards the first submission of the counsel of the appellant, that two persons have been transferred where only one post is available, is that once the mistake was detected, an order was passed on 03.07.2024 granting the second person namely one Sudhir Kumar Singh, additional charge of Electricity Distribution Circle, Nautanwa and therefore, the petitioner-appellant has no reason to be aggrieved.
The judgment under appeal wherein the transfer order of the petitioner-appellant was under challenge has upon consideration of the material on record, the High Court held as under:-
(i) Transfer is an exigency of service and that a person working on a transferable post has no fundamental right or vested right to claim a particular place or station or posting of his choice. For this purpose, reliance has been placed upon the judgment passed by the Single Judge in Union of India v SL Abbas (1993) 4 SCC 357.
(ii) The appellant and the other petitioners before the Single Judge were employees of the Purvanchal Vidyut Vitaran Nigam Ltd., which is a company registered under the Companies Act. Although earlier they were employees of UP State Electricity Board and by Scheme of 2000, they were transferred to the company. Since the company did not frame regulations, the existing service conditions of the Board continued to apply as was provided under the clauses 6(9), (10) and (11) of the UP State Electricity Reforms Transfer Scheme, 2000. Besides, the service rules of employees will be governed under the Contract Law.
(iii) Since no regulations have been framed regarding the transfer of the employees within the DISCOM, the executive instructions issued by the Company will have binding force.
(iv) A transfer order can be challenged only on the ground of violation of a statutory rule or on the ground of mala fides.
(v) There is no requirement of a company registered under the Companies Act to have any statutory regulations and any administrative direction issued by the competent authority has binding force. This has been so held relying upon the Division Bench of this Court in Rajeev Kumar Jauhary v State of UP and others, 2007 (2) AWC 1726 and SK Naushad Rahaman and others v Union of India and others (2022) 12 SCC 1.
The Court said that insofar as the contention that the spouse of the petitioner appellant was posted in Varanasi and therefore, the petitioner should not have been transferred to another district, the said aspect has been considered by the Single Judge in the judgment and reliance has been placed upon the judgment of the Apex Court in Union of India v SL Abbas (1993) 4 SCC 357.
Moreover, the Government orders that have been relied upon by the petitioner in the petition, are with regard to the State Government employees. It is not in dispute that the petitioner is an employee of a Company. Even an employee of a company of which 100 percent share-holding is with the Government is a distinct corporate entity having perpetual seal and succession and therefore, it does not entitled to claim benefit of Government Orders pertaining to transfer where specific administrative/ executive instructions governing transfer exist in the Company, the Court observed.
“In view of the above, we are constrained to hold that not only have the issues raised before the Court been duly considered by the Single Judge in the judgment under Appeal, we do not find any error in the reasoning given while dismissing the petition of the appellant.
In our considered opinion, no good ground exists for interfering in the findings returned in the order under appeal”, the Court further observed while dismissing an appeal.
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